Cases by Issue - Vehicleshttp://www.oyez.org/taxonomy/term/8253/podcast
U.S. Supreme Court Oral Arguments, presented by The Oyez Project (www.oyez.org)enFlorida v. Harris - Oral Argumenthttp://www.oyez.org/cases/2010-2019/2012/2012_11_817/argument
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Case:&nbsp;</div>
<a href="/cases/2010-2019/2012/2012_11_817">Florida v. Harris</a> </div>
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Transcript:&nbsp;</div>
<p>ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Mr. Garre, welcome back.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Thank you, Your Honor, and may it please the Court:</p>
<p>The question in this case is when does a trained drug detection dog's alert to a vehicle establish probable cause to search the vehicle.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Are you for or against the dog this time?</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: For it again, Your Honor.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: For it again.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: The Florida supreme court answered that question by erecting what we think is an extraordinary set of evidentiary requirements that, in effect, puts the dog on trial in any suppression hearing in which defendant chooses to challenge the reliability of the dog.</p>
<p>I think, most fundamentally, the problem with the court of appeals' -- the Supreme Court's decision -- is that it misconceives what this Court's cases conceive of the probable cause requirement, converting probable cause, which this Court has referred to as a substantial chance or fair probability of the detection of contraband or evidence of a crime, into what amounts to a continuously updated batting average and a requirement that dogs be virtually infallible.</p>
<p>That -- that--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Mr. Garre--</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: That -- that goes to the field performance; but, the other requirements, that the -- some showing -- the test -- that the training program is reputable, some showing that the handler, not only the dog, that is -- has had training, it seems to me those two are not -- there's nothing improper about that.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Well, and I think, Your Honor, under our view of it, it's okay to inquire into whether or not the dog has successfully completed a bona fide training program, which -- which we think is a training program in which the dog is going to be tested for proficiency, including in a setting where some vehicles have drugs and some vehicles don't.</p>
<p>And Aldo, the dog in this case, clearly was.</p>
<p>He'd received a 120-hour training program with the police department in Apopka, Florida.</p>
<p>He received a 40-hour refresher seminar by another police department in Dothan, Alabama.</p>
<p>And he was subjected to continuous weekly training, in which part of that training consisted of taking him out, walking him by some vehicles that contained cars, some vehicles that didn't.</p>
<p>And the testimony of Officer Wheetley was that Aldo's performance was really good.</p>
<p>And what he meant by that was that if there were eight cars with drugs.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Then why did -- then why didn't they get the dog recertified?</p>
<p>By the time of the search, the certification had expired 16 months.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: It was a lapse, Your Honor.</p>
<p>The dog subsequently was recertified.</p>
<p>Our position is that the Fourth Amendment doesn't impose an annual certification requirement.</p>
<p>Some states have it, some states don't.</p>
<p>I think, more important in this case was the fact that the dog was continuously trained, continuously evaluated and trained.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Well, what do you -- what do you have to show to establish that the dog was well trained.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Well, Your Honor, I think the most important thing is successful completion of proficiency testing.</p>
<p>I mean, what -- what our friends would like, and what the Florida supreme court would like, was really for the courts to delve into all aspects of the training, what types of distracters were used, what type of smell and printing was used and the like.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Well, if it were just that -- you have the show that the program was reputable.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Well, certainly that it was authentic, Your Honor.</p>
<p>And here, the programs were conducted by actual police departments in -- in Alabama and Florida.</p>
<p>And this Court ordinarily would presume regularity in those sorts of training settings.</p>
<p>And there's no reason to approach the training of a dog any differently, but--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: --I thought all of these training facilities were private entities that contracted with police departments.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --No, Your Honor.</p>
<p>The certification.</p>
<p>Certification usually is done by private entities which are operated by former law enforcement officers.</p>
<p>But the training itself, it usually and here was done by police departments themselves.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Could I go back to Justice Ginsburg's question?</p>
<p>There's no -- what I hear -- read the Florida court saying is there's no national standard for certification.</p>
<p>That's correct?</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Yes.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: There's no national standard that defines what's adequate training, correct.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: That's right.</p>
<p>There--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: So -- let me just finish my question.</p>
<p>So assuming there's no national standards, then how do you expect a judge, without asking questions about the content of the certification process, the content of the training process, and what the results were and how they were measured, how do you expect a judge to decide whether the certification and the training are sufficiently adequate.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --And I think that the central inquiry that we would think the judge would undertake is to determine whether or not the dog was performing successfully in proficiency testing.</p>
<p>After all, that's why we train the dogs.</p>
<p>And--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: But you still have to ask what that training was, and the judge still has to determine whether the judge believes it was adequate, correct?</p>
<p>That's what the totality of circumstances requires.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Well, Your Honor, in our view, we don't think it's -- it's an appropriate role for the Court to delve into the contours of the training, what specific methods were used to train or distract or -- you know, all the contours that they bring up in their brief.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: So what does a judge do, just say, the police department says this is adequate, so I have to accept it's adequate.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Not -- you would have to accept it, Your Honor, on its face.</p>
<p>I think you -- in a record like this -- and I think this record is clearly sufficient -- and, ultimately, that's what we're asking this Court to hold -- what you have in the record is evidence--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Mr. Garre, I -- I have no problem that this record -- with this record.</p>
<p>My problem is how do we rule.</p>
<p>Because it seems the me that I'm not quite understanding what -- how -- the legal rule you're asking us to announce.</p>
<p>I think the legal rule, you're saying, if the dog has been tested for proficiency by a police department's determination of what's adequate for proficiency, that establishes probable cause.</p>
<p>That's what I think the rule you want us to -- to do.</p>
<p>I don't know what the role of the judge is in that--</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --I think it would be close--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: --with that rule.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --close to that.</p>
<p>We would ask whether or not the dog successfully treated -- completed training by a bona fide organization.</p>
<p>And here--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: No certification, no questioning of the handler and the handler's training?</p>
<p>The judge can't do any of that and shouldn't do any of that, is what you're saying.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Certification is not required.</p>
<p>It may be one way that the police department could establish reliability a different way, but certification itself is not required when you have a record of the type of training that you have here.</p>
<p>We do think that you could put the handler on the stand and ask about the reliability, certain questions about reliability.</p>
<p>We don't think, in a record like this, the judge would say, well, it says that he completed 120 hours in narcotics detection at the Apopka, Florida police department, and 40 hours at the Dothan police department, so--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: So it's not enough for you to win by us saying that a court can't insist on performance in the field records, that it has to look at the totality of the circumstances.</p>
<p>What other case have -- have we announced, under a totality of the circumstance test, a absolute flat rule like the one you're proposing?</p>
<p>Where else have we said that one thing alone establishes probable cause--</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Your Honor--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: --that one factor alone.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --I think one area where the Court mentioned that was in the Lago Vista case, where it talked about the importance of clear rules for police officers--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: You know, I suppose that if the reasonableness of a search depended upon some evidence given by a medical doctor, the Court would not go back and examine how well that doctor was trained at Harvard Medical School and, you know, what classes he took and so forth, right.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Absolutely.</p>
<p>And the same way that when an officer provides evidence for a search warrant, we don't demand the training of the officer, what schools he went to or what specific courses he had in probable cause.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Mr. Garre, you said there was the certification, training program, but you gave a third.</p>
<p>You said, or otherwise show proficiency in locating narcotics.</p>
<p>So if there is no certification, no training, how would the state establish that the dog was reliable in detecting drugs?</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Your Honor, I think that that would be the unusual case, and it probably would be captured by the other factors; but, what we meant by including that is that there's no limit on the types of evidence that the police could submit to show reliability.</p>
<p>If you didn't have certification or a formal training program, the fact that there was evidence that a dog like Aldo successfully performed in weekly training over the course of the year, and the police submitted the records, like the records in the Joint Appendix in this case at pages 106 and 116, that might be another way of establishing reliability.</p>
<p>But the -- the central way would be showing that the dog successfully completed training or that the dog was certified.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: And I think you'll agree that the handler, too, the handler would have to--</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Well, Your Honor, we don't think there is a Fourth Amendment requirement of certification for handlers.</p>
<p>Again, this is something that varies among states.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: --Not -- not certification, but that the handler has been -- has been trained--</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Yes.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: --to work with drug detection dogs.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: That's correct.</p>
<p>And Officer Wheetley here, of course, had been trained.</p>
<p>He had gotten a 160-hour course in narcotics detection, and had done training with Aldo in the Dothan, Alabama police department, 40 hours there.</p>
<p>And these dog -- the dog, Aldo, and Officer Wheetley had worked together for about a year before the time of the search.</p>
<p>The handlers themselves are going to be in the best position to know the dogs and evaluate their reliability.</p>
<p>And they have a strong incentive to ensure the dogs are reliable.</p>
<p>That's both because they don't want to miss contraband when it's available -- when it exists in the field; and, also, they don't want to be put into harm's way.</p>
<p>The traffic stop, in particular, is one of the most dangerous encounters police officers face.</p>
<p>They're not going to want to be working with a dog that is consistently putting the officer in a position of searching cars based on an alert when that dog is not reliable in predicting the presence--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Counsel, I'm somewhat troubled by all of the studies that have been presented to the Court, particularly the Australian one where, under a controlled setting, one dog alerted correctly only 12 percent of the time.</p>
<p>How and when and who determines when a dog's reliability in alerting has reached a critical failure number?</p>
<p>And what is -- what do you suggest that number is, and how does a judge determine that that's being monitored?</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --We don't think the Fourth Amendment puts a number on it.</p>
<p>This Court has rejected a numerical conception of probable cause.</p>
<p>But with respect to--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Well, I'm deeply troubled by a dog that alerts only 12 percent of the time.</p>
<p>That whatever -- whether we have a fixed number or an unfixed number, that seems like less than probability for me.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --But, but let me -- let me address the, the South Wales study, Your Honor, which I think is the one that you were referring to and it's the primary one relied on by the other side.</p>
<p>In that case they reported that over the course of several years the dogs' alerts resulted in discovery of drugs only 26 percent of the time.</p>
<p>But there is another part of that study which doesn't come up in the amicus briefs, and that's that in 60 percent of the other cases the individuals admitted to using drugs or being in the proximity of drugs.</p>
<p>And if you include that in the universe of accurate alerts, as you should, then the number becomes 70 percent of dogs accurately alerting.</p>
<p>That 70 percent based on the primary study that they rely upon--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: That doesn't answer what happens to the dogs who have -- dogs grow old.</p>
<p>They are taken out of service for a reason.</p>
<p>So how -- how is a court supposed to monitor whether or not a dog has fallen out of--</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Well, primarily by looking at whether the dog has successfully completed training.</p>
<p>And you're right, dogs do go out of service when they reach a certain age.</p>
<p>Dogs, like humans, become old and impaired over time.</p>
<p>But -- but looking at weekly training records, like are available in this case, dogs that successfully perform week in and week out in training are going to successfully perform in the -- in the real world.</p>
<p>And, after all, I think the most problematic aspect of the challenges to the reliability of these dogs is that law enforcement agencies across the country at the State and Federal level, law enforcement agencies around the world, and law enforcement agencies that protect this Court rely on detection dogs as reliable predictors of the evidence of contraband, evidence of the presence of explosives or likewise.</p>
<p>And this is an area where we think that a page of logic and experience is worth a volume -- a page of experience and history is worth a volume of logic.</p>
<p>These dogs have been used and are being used in many settings across the country and across the world today.</p>
<p>And the reason they are being used is because the people who work with them know that they are reliable and -- and know by experience that they are reliable.</p>
<p>And that's one of the central problems we have with the argument on the other side, is that ultimately this Court should distrust the reliability of the dogs.</p>
<p>And again--</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: Well, Mr. Garre, could I understand your argument?</p>
<p>Because -- suppose in a case the Government comes in, says this dog has been through training and the handler has been through training.</p>
<p>And this is a case in which -- this is never going to come up when the dog actually alerts to narcotics; it's not worth anybody's time at that point.</p>
<p>It's only going to come up in a case like this, where a dog alerts to narcotics, there is no -- there are no narcotics, but something else is found, and so the person ends up being criminally prosecuted.</p>
<p>So it's, you know, a small universe of cases.</p>
<p>So the Government comes in and says that the dog has been trained.</p>
<p>Can -- can the criminal defendant at that point call the handler, say, how has the dog been trained, what are the methods that -- that the dog has -- was used, and how did the dog do in training?</p>
<p>Can the -- can the defendant do that.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --Your Honor, I think that the defendant can call the handler and can ask those sorts of questions.</p>
<p>I think the court would cut it off if you got into questions like, well, did they use the play-reward or the scent-imprinting method in training.</p>
<p>Well, what specifics -- because I think that delves too far into the details.</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: But you can ask questions like how did the dog do in training.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Yes, and that was done here.</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: And how about if you really, if there were some articles that said, you know, that there was a certain kind of method that, for example, led to a lot of subconscious cueing by the handler.</p>
<p>Could the -- could the criminal defendant say, did you use that method that leads to these problematic results?</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: I -- I don't think so, Your Honor.</p>
<p>First of all, cueing is not part of this case because they haven't argued that the dog was cued.</p>
<p>The argument is the dog was just sort of inherently reliable.</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: I'm using “ cueing ” not in terms of any intentionality, but one thing that I learned in reading all of this was that one difficulty here is that dogs respond to subconscious cues and that there are different ways of training that make that less or more of a problem.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: And our position is, is that you can inquire into cueing during this hearing, that the defendants can -- can argue that the dog was cued, and in -- in the course of that argument you might be able to get into those sorts of things.</p>
<p>That's different than the challenge that was made here.</p>
<p>There wasn't a cueing challenge made in this case.</p>
<p>I would like to just go back to one of the premises of your question, which is that the dog in this case didn't accurately alert.</p>
<p>The dog in this case accurately alerted to the odor of illegal narcotics.</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: Yes, I didn't mean to say that.</p>
<p>I just meant to say that there were -- there were no drugs found.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Right.</p>
<p>And, and I think that's another central problem with the Florida supreme court's decision, is this notion that alerts to so-called residual odors aren't indicative of the dog's reliability.</p>
<p>A dog's alert to the lingering odor of methamphetamine which was in the car, must have been in the car in this case, is just as accurate as a dog's alert to the presence of methamphetamine itself in the car.</p>
<p>If I could reserve the remainder of my time for rebuttal?</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Thank you, counsel.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Thank you.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Mr. Palmore.</p>
<p>ORAL ARGUMENT OF JOSEPH R. PALMORE, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: Mr. Chief Justice and may it please the Court:</p>
<p>This Court has long recognized the ability of trained dogs to reliably detect target odors and such dogs every day perform critical life and death homeland security and law--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Counsel, I have two separate questions for you.</p>
<p>Tying the earlier case a little bit to this one, I am assuming that your position is -- and you'll tell me what the legal standard is -- that a well-trained dog, if he alerts, or walks by a row of apartments, a row of houses, and alerts the drugs, that that simple alert is probable cause for the police to get a search warrant.</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --Yes, we believe that an alert by a trained dog is sufficient to establish probable cause.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: So that, without any other information about -- unlike the earlier case or this one, where the police officer saw the individual being nervous, et cetera, et cetera -- that all -- all it takes is a dog alert, despite the fact that there is no study that says the dogs reliably alert 100 percent of the time?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: 100 percent of the time is of course not required for probable cause.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: No, I -- I understand.</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: It's a fair probability standard and certainty is not required, and I think that was the principal and fundamental flaw of the Florida supreme court.</p>
<p>It demanded infallibility where infallibility is not required.</p>
<p>In terms of studies, it is actually well studied--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: So -- so shouldn't we be addressing the question whether a -- an alert, especially outside a home in particular, should be, standing by itself, enough?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --I think what the Court -- of course reliability is important.</p>
<p>The question is how you determine reliability.</p>
<p>This is a somewhat unique setting where the law enforcement tool is actually tested initially and on an ongoing basis in a controlled setting to establish its reliability.</p>
<p>Your Honor asked what the standard for bona fide training is.</p>
<p>We think the -- the important point is the outcome of the training: Is the dog proficient, can the dog reliably detect narcotics odor and only narcotics odor in a controlled setting where false positives and false negatives can accurately be measured?</p>
<p>That record is established here.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Well, only because the officer said that he satisfactorily performed--</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: Well--</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: --and what the Florida court said: But we don't know what that means.</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --Well, we -- I think we do know what it means, Your Honor.</p>
<p>There are two different showings that are made here.</p>
<p>There is a formal training and formal certification, both for the dog and the handler separately, and then a separate training, formal training together.</p>
<p>But then, just as important, you have ongoing but less formal proficiency exercises conducted by the handler in which the dog, in a controlled setting where errors could reliably be identified, performed quite strongly, including 2 days before the arrest here.</p>
<p>So that's JA 113 on June 22nd, the dog performed perfectly in a controlled setting.</p>
<p>And we have -- there are records in this case going back several months before the arrest and several months after the arrest showing that -- that this dog passed the test, this dog was reliable.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: And you agree that that's an appropriate area of inquiry?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: We think it is.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: The judge, presented with, here's Aldo, he was -- went to this school, he was certified, the judge can say, when was he last tested, right?</p>
<p>When did he last go through some--</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: Yes, I think the judge can ask those kinds of questions.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: --The -- the only thing really you say they can't ask about is what's -- what's his record.</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: Well, there is a question -- there are a couple sub-issues here.</p>
<p>The principal vice of the Florida supreme court was in imposing an unprecedented and inflexible set of evidentiary obligations that are part of the Government's affirmative case that the Government has to always introduce any time it seeks to establish probable cause based on a dog alert.</p>
<p>We think that's fundamentally misplaced for a -- for a variety of reasons.</p>
<p>The question of what the Government -- what are fair game questions for a defendant to ask once the handler is on the stand is a -- is a different question.</p>
<p>And--</p>
<!-- Anthony_Kennedy--><p><b>Justice Anthony Kennedy</b>: And judges do this thousands of times in thousands of cases.</p>
<p>They ask: Was the tip reliable?</p>
<p>There are any number of permutations.</p>
<p>It's a question of whether or not the trial judge was -- made a correct determination in determining that there was or was not sufficient cause for the police to proceed.</p>
<p>It just happens every day.</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --I think that's right, Your Honor, but I think the -- the critical aspect of reliability in this context is the dog's performance in a controlled setting.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Mr. Palmore, you criticize the Florida supreme court for requiring evidence of field performance; and, assuming that that evidence is not required, if the defendant, in preparing for the suppression motion, wants what information there is, would it be proper to seek -- for the defendant -- would it be permissible for the defendant to speak -- to seek through discovery whatever field performance records there are?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: We don't think so, certainly not as a routine basis.</p>
<p>The kind of burden that that might impose on law enforcement we don't think is justified.</p>
<p>That's a separate question from whether the defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate.</p>
<p>We think, typically, an answer on field performance is not going to be material.</p>
<p>It's not going to be helpful.</p>
<p>Because the problem is in the field, when a dog alerts, the dog is trained to alert to the odor of drugs.</p>
<p>It's like a -- what the -- Florida supreme court wanted a batting average, a batting average that would be calculated when we know the number of at bats, but we don't know in many cases whether there was a hit or an out.</p>
<p>So we had a fraction where we know the denominator but not the numerator.</p>
<p>The answer to the Florida supreme court's question and concern about reliability, again, is to go back to the controlled setting, where we know what's a hit and what's an out, and we can calculate a reliable batting average.</p>
<p>That needs to be where the focus should be in determining the reliability of a dog.</p>
<p>And there should -- there's no reason to constitutionalize the process or the training methodologies that get you to that point.</p>
<p>What matters is, is this dog successful in a setting in which we can measure success.</p>
<p>And I think that it's also important to point out that the Florida court was basically alone in establishing these unprecedented and inflexible sets of evidentiary requirements.</p>
<p>There is a large body of case law in the lower courts on the reliability of drug detection dogs going back 30 or 40 years, and there are no other courts, no other appellate courts to be sure, that have imposed these kinds of requirements on law enforcement when it seeks to establish probable cause for a detection -- for after a detection dog alerts.</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: If you take out the Florida supreme court and this one trial court in Massachusetts, basically you think what courts have been doing is the right thing?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: In general.</p>
<p>There is some diversity across the courts, but I think that if you look at Judge Gorsuch's opinion in the Ludwig case from the Tenth Circuit, or the Jones case from the Virginia supreme court, you see approaches that are basically sound, where courts have confidence that if law enforcement comes in and says, this dog is trained and has demonstrated proficiency in a training setting, that that dog is generally reliable.</p>
<p>And I think, as Mr. Garre--</p>
<!-- Elena_Kagan--><p><b>Justice Elena Kagan</b>: But where at the same time they'll allow a defendant to question the handler about that training, about how the dog has performed in that training; is that right?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --Yes.</p>
<p>Those questions can be asked.</p>
<p>But I think it's critical, as Mr. Garre pointed out, that the courts not constitutionalize dog training methodologies or hold mini trials with expert witnesses on what makes for a successful dog training program.</p>
<p>Because, as Mr. Garre said, the Government has critical interests, life and death interests, that it stakes on the reliability of these dogs.</p>
<p>So the U.S. Marshals use dogs to protect Federal judges.</p>
<p>The Federal Protective Services use dogs to keep bombs out of Federal buildings.</p>
<p>The TSA uses dogs to keep bombs off of airplanes.</p>
<p>FEMA uses dogs to find survivors after hurricanes.</p>
<p>There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy.</p>
<p>So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable.</p>
<p>And I think the courts--</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Do you -- I'm not sure it's relevant, but do dogs -- does their ability -- is it even across the board?</p>
<p>In other words, if you have a dog that's trained and good at sniffing out heroin, the same dog is going to be good at detecting a bomb, or is there some difference?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --No, there -- well, I think any dog could be trained in either discipline.</p>
<p>And if you look at the Scientific Working Group on Detection Dogs report that we cite in our brief, the report explains that the same general methodologies and the same different -- same general approach is used to train each kinds of dogs.</p>
<p>But, typically, a drug detection dog will not be cross-trained on explosives.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: So you don't know whether -- in other words, are dogs good at sniffing things, or are they -- can they be good at bombs, but not good at meth?</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: Well, I don't know the specific answer to that.</p>
<p>I think once a dog kind of chooses a major, that's what they stick with.</p>
<p>But I think the important point is that--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: You don't want coon dogs chasing squirrels.</p>
<!-- Joseph_R_Palmore--><p><b> Joseph R. Palmore</b>: --Right.</p>
<p>But I think the important point is that these dogs have to meet -- have to pass proficiency in an initial training program, and then they, as is shown in the record here in great detail, they show proficiency on an ongoing basis, including in this case two days before the arrest.</p>
<p>Thank you, Your Honor.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Thank you, counsel.</p>
<p>Mr. Gifford.</p>
<p>ORAL ARGUMENT OF GLEN P. GIFFORD ON BEHALF OF THE RESPONDENT</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search.</p>
<p>If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts.</p>
<p>This can encompass evidence of initial training, certification, maintenance training and performance in the field.</p>
<!-- Anthony_Kennedy--><p><b>Justice Anthony Kennedy</b>: Do you understand the government to disagree with that general position?</p>
<p>In other words, the trial court, if you have an attorney that's really concerned about the training of this dog, they can ask about it.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: I do understand the government to disagree about the relevance of field performance.</p>
<p>And where I specifically think the government disagrees is on the level of detail that can be inquired into by the trial court on any of these elements.</p>
<!-- Stephen_G_Breyer--><p><b>Justice Stephen G. Breyer</b>: I didn't think they disagreed about what he may do; I thought they disagreed about what he must do.</p>
<p>That is, the Florida supreme court said you must, da, da, da, da, da, and gave a whole list.</p>
<p>I thought that's what the case was about.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Well, the Florida supreme court did have several passages in its opinion where it talked about what the state must produce.</p>
<p>And at first glance, that looks rather didactic.</p>
<p>However, what I think the Florida supreme court was saying there was that if this -- these records exist, the state must produce them.</p>
<p>And that is consistent with the state's burden of proof to justify a warrantless search.</p>
<!-- Stephen_G_Breyer--><p><b>Justice Stephen G. Breyer</b>: Well, that's a totally different matter.</p>
<p>Of course, I agree with you that a trial judge has control of the trial.</p>
<p>He's likely to know what's relevant.</p>
<p>In different circumstances, different matters will be, and he has first say on what you're going to go into.</p>
<p>It's the must.</p>
<p>And now you're on the point.</p>
<p>Why is that the right list?</p>
<p>I mean, what in the Constitution requires that list?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: I don't believe the Constitution requires it, and I don't believe--</p>
<!-- Stephen_G_Breyer--><p><b>Justice Stephen G. Breyer</b>: Doesn't the Supreme Court believes the Constitution requires it?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --No, I don't think so, even though they used the word must.</p>
<p>I think that the must concerns performance records and training records that exist.</p>
<p>Farther down in the opinion, the Court says reasons why the -- why the state should keep and present performance records--</p>
<!-- Stephen_G_Breyer--><p><b>Justice Stephen G. Breyer</b>: But what--</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: So if the state doesn't keep -- if the state doesn't keep any performance records, then there would be no field performance to show, but that doesn't mean the state loses; is that what you're saying?</p>
<p>The state doesn't keep performance records.</p>
<p>The Florida supreme court seems to say field performance records are required.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --If the state does not keep field performance records, that is a fact, that is a lack of evidence that could be held against the state in the suppression hearing.</p>
<p>And it shifts the focus onto providing evidence of the initial training, the certification, and the maintenance training that can show to the trial court that this is a reliable dog.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Now I thought the court said -- held against the state.</p>
<p>I thought what the Florida court was saying is if you didn't produce it, the dog's evidence would not be allowed--</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: They did use--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: --the search is invalid.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --The court did use the word must--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Yes.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --but it's not -- it's not a specific recipe that can't be deviated from.</p>
<p>Because, in addition to listing the records that must be produced, the Florida supreme court also said, and all other evidence that bears on the reliability of the dog.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Even worse.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: So it's not a specific recipe, and it's talking about what -- if these records exist, they must be produced.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Are you conceding that the Florida supreme court, at least with respect to the field performance records, was wrong, that they -- it is not a Fourth Amendment requirement?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: I don't think they -- I don't think they require field performance records to establish--</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: But they outline what the government must prove, and that was one of them.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --They said what the government must produce if those records exist.</p>
<p>But when you go down to the part of the opinion where the court applies the law to the facts, the court didn't just say, because there were no field performance records, no probable cause, we close up shop, conviction reversed.</p>
<p>What the court did was take into consideration the lack of field performance records, the lack of any records about initial training and certification aside from the fact that this dog had a certificate.</p>
<p>And we have to remember that this certificate, not only was it 16 months out of date, it wasn't a certificate for Aldo.</p>
<p>It was a certificate for Aldo and a Seminole County deputy together as a team.</p>
<p>This dog was never certified as part of a team with Officer Wheetley in this case.</p>
<p>And the certifications in this area are team certifications, not individual certifications.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Is that a requirement too?</p>
<p>That's a constitutional requirement, that the dog training doesn't count unless it's training with the officer who is using the dog?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: No, but that's an indicator of reliability, which is the ultimate test here, has this team been trained and certified together--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Well, fine.</p>
<p>counsel can bring that up.</p>
<p>Counsel can bring that up at the hearing before the judge.</p>
<p>But -- but I understood this to be a -- a requirement.</p>
<p>You never even get to that hearing, because there's no evidence that this dog was ever trained with this policeman.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --That's correct, there is no such evidence.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Yes, and therefore end of case, right?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: No, not end of case.</p>
<p>The fact that the dog wasn't trained with this policeman means that you need to look for evidence -- other evidence of reliability, which also doesn't exist in this case.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Well--</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Doesn't this -- this officer has been working with this dog for many months.</p>
<p>They have training periods every week.</p>
<p>So why isn't that enough to show that this handler and this dog worked effectively as a team?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Well, first, this weekly training is maintenance training.</p>
<p>It's to maintain the dog at a level of proficiency that has previously been established.</p>
<p>That level of proficiency hadn't been established with this team of Wheetley and Aldo.</p>
<p>The level of proficiency that had been established was with Wheetley and with another Seminole County deputy.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: --What -- what -- what are the -- what are the incentives here?</p>
<p>Why would a police department want to use an incompetent dog?</p>
<p>Is that any more likely than that a medical school would want to certify an incompetent doctor?</p>
<p>What -- what incentive is there for a police department?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: The incentive is to acquire probable cause to search when it wouldn't otherwise -- otherwise be available.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: And that's a good thing?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Is that a good thing?</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: I mean, you acquire probable cause, you go in and there's nothing there.</p>
<p>You've wasted the time of your police officers, you've wasted a lot of time.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: And -- and you've invaded the privacy of an individual motorist who was innocent.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Well, maybe the police department doesn't care about that, but it certainly cares about wasting the time of its police officers in fruitless searches.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: The incentive of the officer to be able to conduct a search when he doesn't otherwise have probable cause is a powerful incentive.</p>
<p>As the Court has said, ferreting out crime is a competitive enterprise.</p>
<p>And also, these--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Willy-nilly.</p>
<p>Officers just like to search.</p>
<p>They don't particularly want to search where they're likely to find something.</p>
<p>They just like to search.</p>
<p>So let's get dogs that, you know, smell drugs when there are no drugs.</p>
<p>You really think that that's what's going on here?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --Officers like to search so that they can get probable cause so that they can advance their career.</p>
<p>Forfeiture is also an issue.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: They like to search where they're likely to find something, and that only exists when the dog is well trained.</p>
<p>It seems to me they have every incentive to train the dog well.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: But the question goes back to the dog's reliability, what the officer knows objectively, and what that officer can demonstrate on the stand to the trial court to determine by the totality of the circumstances that that dog is well trained.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Getting back to -- I'm confused about the difference between must and is required.</p>
<p>What if the judge has before him or her a record, this is where the dog went to school and it's a bona fide school, this is where the dog was certified, he's trained every -- every, you know, couple of weeks or whatever it is, and the judge says, do you have any field records, and the officer says, no, and the drug says -- the judge says, well, then no probable cause.</p>
<p>That's reversible error, right?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: It is reversible error if we know what went into the training and certification.</p>
<p>Was that training and certification sufficient to prove the dog was reliable?</p>
<p>Did it include the use of blanks and did the--</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: You have, I guess, experts testify about whether -- what constitutes a good training program.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --No, not necessarily experts, but simply the -- the officer who participated with the dog can testify as to what he and the dog went through to obtain the training certificate and the -- and the certification.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Oh, I assure you that if we agree with you there will be a whole body of experts that will spring into being about dog training.</p>
<p>I assure you that that will be the case.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Those experts already exist.</p>
<p>They -- they are prevalent in the case law already.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: I understood the Florida supreme court, counselor, to say that the deficit in the training records here was because there was no evidence of false positives, that the reports didn't say, the training reports didn't say, if the dog was alerting falsely.</p>
<p>Assume that the record, as your adversary claimed, shows the opposite, that a satisfactory completion means that the dog detected drugs where they were.</p>
<p>What -- why wouldn't the training records here be adequate in that circumstance?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: That would be one of several showings that would make the training records adequate.</p>
<p>Also, you would want to know whether there were distractors used in the field.</p>
<p>However, I don't believe that the record supports, except -- and this is arguable; the parties dispute this -- for the maintenance training.</p>
<p>All the State had for the initial training with Deputy Morris, not with Deputy Wheetley, was a certificate: One certificate that said this dog was trained by the Apopka Police Department for 120 hours with Deputy Morris; another certificate saying that this dog was certified by drug beat narcotics certifications, again with Deputy Morris, for 1 year.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: I -- I guess what I'm asking you is, as a matter of law you want us to hold that training records are inadequate unless what?</p>
<p>Unless -- you're going to specify now a list of things they have to include?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: No.</p>
<p>This Court in -- in a number of circumstances has provided examples that can guide a court in probable cause determinations.</p>
<p>In Illinois v. Gates, under the old Aguilar-Spinelli test, the Court specified where evidence on one prong can be so strong that it substitutes for evidence on another prong.</p>
<p>In Ornelas, the Court pointed to local knowledge that can be relied upon, such as the winter climate in Milwaukee.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: But, counsel, you're defending a Florida supreme court opinion which says “ must ”.</p>
<p>You can't just say, you know, I'm not asserting any particular thing is necessary, just, you know, totality of the circumstances.</p>
<p>You have an opinion here in which the Florida supreme court says “ must ”.</p>
<p>It must include the, you know, the field training.</p>
<p>Now, do -- do you disavow that or -- or do you want us the ignore it?</p>
<p>What?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: That is -- that is not the holding on which I'm relying here.</p>
<p>The holding on which I'm relying is that training and certification alone, the mere fact of training and certification alone, is not sufficient to establish the dog's reliability.</p>
<p>And as to the language about “ must ”, remember, the Florida supreme court didn't just say that the failure to produce one of these elements necessitated reversal.</p>
<p>It then went and engaged in a totality of the circumstances test.</p>
<p>And several lower courts applying that case, applying Harris, have reached the same conclusion.</p>
<p>In two of those cases--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: But this is absent in the totality of the circumstances and you nonetheless hold that there was probable cause, then “ must ” does not mean “ must ”, right?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --“ Must ” means “ must ” if the State has the records.</p>
<p>If the records exist, then the State must produce them because it bears--</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: That's not what the Florida supreme court said?</p>
<p>It listed, along with training, that the -- the provision of records of field performance.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --I read that as: If those records exist, the State must produce them, because not only does it bear the burden of proof; it's the only party that can produce these records because it keeps the dog.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: Suppose it's -- it's a dog that's just completed the training, training course, top-performing dog in the training program, but there's no field record.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: If that -- if the training is sufficient, if it has those elements that demonstrate that the dog is reliable, those are the circumstances.</p>
<p>You have the totality of the circumstances there and those circumstances don't include any field performance.</p>
<p>And, yes, under that circumstance, a trial court can find the dog to be reliable.</p>
<!-- Samuel_Alito--><p><b>Justice Samuel Alito</b>: What is wrong with the State's argument that field performance records are not very probative because dogs detect odors, they don't detect the physical presence of the substance that created the odor, and therefore so-called false alerts, cases in which a search was performed and no contraband was found are not really cases of false alerts.</p>
<p>What's wrong with that?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Well, you don't know whether they're cases of false alerts or not, because the State will always point to the possibility of residual odor as a reason.</p>
<p>And we know from the studies that have been cited in the briefs that there are other reasons that dogs alert when that alert cannot be verified.</p>
<p>Handler cueing is identified as the chief one.</p>
<p>And simply dogs make mistakes.</p>
<p>Dogs err.</p>
<p>Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing.</p>
<!-- Samuel_Alito--><p><b>Justice Samuel Alito</b>: Well, that may all be true, but then what -- what can one infer from the fact that a dog alerted a number of times when no contraband was found?</p>
<p>I think what you just said was the explanation could be the dog detected an odor, but the substance wasn't there, or it could be that the dog was cued or the dog was confused or the dog is not very competent.</p>
<p>So what can one infer from these field performance records?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Well, what you can infer is this dog is not a very accurate indicator of probable cause, because probable cause tests whether drugs are likely to be found in a search that follows an alert.</p>
<p>If the dog's--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: But they are likely to be found if there is a residual odor of drugs, even though the drugs are no longer there.</p>
<p>So it's not an incompetent dog when he alerts because of the residual odor.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --But if a dog has -- but if a dog has previously alerted and no drugs have been found because the dog's hyperacuity causes him to smell drugs that were there two days or two weeks ago, then the next time that dog alerts, it's less likely, the probability declines that drugs will be found.</p>
<p>It goes to what probable cause measures, rather than what the dog training and certification community measure, and that is, the likelihood, the reasonable probability, that drugs will be found following the search.</p>
<!-- Sonia_Sotomayor--><p><b>Justice Sonia Sotomayor</b>: Counsel, how is that any different than a police officer who comes to a car and smells marijuana?</p>
<p>He's never going to know whether there is any more in the car or not.</p>
<p>It could have been smoked up an hour before.</p>
<p>I don't know how long marijuana lingers for, but -- I'm not sure why residual odor affects the reliability of the dog, which was Justice Scalia's point.</p>
<p>It's no different than an officer who smells something.</p>
<p>He doesn't actually know whether it's physically still present or not, but we're talking about probabilities.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: That's correct.</p>
<p>And -- and the difference is that -- that the police officer can describe what he has smelled and can say, I smell marijuana.</p>
<p>All the dog tells the police officer is, I smell something I was trained to detect, perhaps, if I'm operating correctly.</p>
<p>But getting to this -- this issue of residual odor, our position is that an alert where no drugs are found means that the dog -- that -- it detracts from probable cause in that instance.</p>
<p>But that's not the only rule available to the court.</p>
<p>Residual odor, whether an alert was to residual odor and is therefore correct and accurate, is something that can be litigated.</p>
<p>In one of the lower courts that decided the case after the Florida supreme court, the court looked to the field performance records, and it found several of them well supported on the issue of whether the alert was probably to the odor of drugs; several it didn't find.</p>
<p>So that is an issue that can be litigated.</p>
<p>Another possibility is--</p>
<!-- Samuel_Alito--><p><b>Justice Samuel Alito</b>: Well, excuse me.</p>
<p>Where -- when nothing is found, how can you tell whether the dog alerted to a residual odor or simply made a mistake?</p>
<p>Now, there may be cases where there is other evidence that suggests that drugs were present in that location, and, therefore, that is something from which you can infer that the dog was alerting to residual odor; but, the fact that you don't have evidence of that doesn't mean that there wasn't residual odor.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --No, it doesn't mean that there wasn't residual odor.</p>
<p>But, again, you go back to what probable cause measures, I believe.</p>
<p>And the Florida supreme court didn't demand evidence of residual odor.</p>
<p>What it did is it said that if field performance records exist, then the state can explain unverified alerts in the field as residual odor, and then a court can then evaluate that.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: What's the magic number?</p>
<p>What percentage of accurate alerts or inaccurate is enough for probable cause?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Well, this Court has always hesitated to assign percentages to probable cause; but, in the lower courts, once you get below 50 percent, probable cause is much less likely to be found, assuming that there is no other corroborative evidence, no other reasonable suspicion factors.</p>
<p>I'd like to talk briefly about the Oregon supreme court and what that court did in several cases.</p>
<p>Helzer and Foster decided in 2011, independently of the Florida supreme court decision, doesn't cite -- in Foster, the Oregon supreme court had a dog that trained initially with the same handler, unlike here, where the evidence was very strong as to the features of the training and certification program, and where that dog had, I believe, a 66 percent field performance record.</p>
<p>Now, the court in Foster said that the dog's reliability can be established by training, certification, and performance in the field.</p>
<p>The court added that it didn't think that performance in the field was the most reliable measure, but it's relevant, and the court considered that 66 percent percentage.</p>
<p>But then, on the same day, in Helzer, there was a dog that trained initially with a different handler, that the handler ultimately testified to very few details of the ongoing training and the certification.</p>
<p>In Foster, the certification was with an organization that required a 90 percent success rate.</p>
<p>In Helzer, there was no such testimony.</p>
<p>And this officer, like the officer here, didn't keep field performance records when the dog alerted and no drugs were found.</p>
<p>In Helzer, the court found that there was insufficient evidence of reliability.</p>
<p>And I believe that those two cases demonstrate what is a -- what is a correct line to draw in navigating what is reliable.</p>
<p>On several arguments made by the State, the argument was that the maintenance training included blanks, and that the dog did not alert to blanks.</p>
<p>The record, we believe, supports the Florida supreme court's conclusion that blanks were tested -- the dog was tested on blanks, but there was no testimony as to whether the dog didn't alert on those blanks.</p>
<p>The State has said that the dog was subsequently recertified.</p>
<p>I don't find support in the record for that.</p>
<p>At a suppression hearing, the State argued -- the officer testified that the dog was scheduled for another certification, but we don't know whether the dog was ever recertified.</p>
<p>The Court can affirm the Florida supreme court simply on the failure to produce adequate documentation of certification and initial training, and on the fact that this dog was never certified with this trainer -- with this handler and didn't initially work with this handler.</p>
<p>You don't have a dog here who was reliable enough to demonstrate probable cause.</p>
<p>The Florida supreme court so concluded.</p>
<p>I believe its conclusion was correct.</p>
<p>And unless there are additional questions.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: The alert -- the alert here could have been to residual odor, or it could have been to drugs inside the pickup truck.</p>
<p>If it's -- because the alert was in front of the -- a front door handle, is that -- so it -- it's equally likely that it -- that it was just residual odor or that there were drugs inside the pickup truck.</p>
<p>Can the police establish probable cause when what the dog alerted to may well have been residual odor and nothing inside?</p>
<p>The dog didn't alert anyplace other than the door handle, is that.</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --It can constitute probable cause.</p>
<p>What Officer Wheetley testified to in this case was he believed that this alert was to residual odor on the door handle--</p>
<!-- Anthony_Kennedy--><p><b>Justice Anthony Kennedy</b>: Excuse me.</p>
<p>Did you say it can or it can't?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: --It may.</p>
<p>It may.</p>
<p>It can constitute probable cause in this case.</p>
<p>Officer Wheetley testified that this dog alerted to the door handle.</p>
<p>And in his prior experience, when the dog alerts to the door handle, it means that someone who had smoked or consumed drugs or handled drugs had touched the door handle.</p>
<p>Now, if Officer Wheetley had testified that in his experience when he'd seen such alerts and conducted a search, drugs were found inside the vehicle, then that residual odor alert would support probable cause.</p>
<p>Officer Wheetley did not so testify.</p>
<p>There was insufficient evidence that this residual odor alert -- that a residual odor alert of this nature, without finding drugs afterward, supports probable cause.</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: But at least we don't have to worry about mothballs in this case; is that right?</p>
<p>There are no mothballs?</p>
<p>[Laughter]</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: No.</p>
<p>No mothballs to my knowledge.</p>
<p>No, Your Honor.</p>
<!-- Samuel_Alito--><p><b>Justice Samuel Alito</b>: Was that the holding in the Florida supreme court, that there was no probable cause because the dog alerted to the wrong part of the truck?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: No, Your Honor.</p>
<!-- Samuel_Alito--><p><b>Justice Samuel Alito</b>: Was it any part of their reasoning?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: They were concerned about residual odor alerting without any explanation by the State as to how residual odor alerting supports probable cause.</p>
<p>But the primary basis for its decision was the lack of performance records and the lack of records supporting initial training and certification to show that this dog was reliable.</p>
<!-- Ruth_Bader_Ginsburg--><p><b>Justice Ruth Bader Ginsburg</b>: --And if we think they were wrong in that respect, I suppose that you would say the Court shouldn't reverse, but should vacate and remand because the question did alert him to the door handle, was that enough?</p>
<p>Was that enough to establish probable cause that there were drugs in the vehicle?</p>
<!-- Glen_P__Gifford--><p><b> Glen P. Gifford</b>: Well, I don't think the door handle itself is -- is dispositive.</p>
<p>I think it's the door handle plus the lack of evidence that we have a reliable dog.</p>
<p>And, again, the reason you need a reliable dog, evidence on what training and certification means, is that there are no standards, no standards whatsoever for initial training.</p>
<p>Some states do have standards for training and certification.</p>
<p>Florida does not.</p>
<p>And no standards for -- for maintenance training as well.</p>
<p>In order to have probable cause, you have to know what that certification, what that training means, if you don't have standards that will tell that for you.</p>
<p>If there are no additional questions, I'll conclude.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Thank you, counsel.</p>
<p>Mr. Garre, you have 3 minutes.</p>
<p>REBUTTAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Thank you, Your Honor.</p>
<p>First, probable cause in this Court's precedents looks not only to the likelihood that contraband would be present, but the likelihood that there would be evidence of a crime.</p>
<p>And that would include the so-called residual odor, evidence that drug paraphernalia, someone had recently smoked illegal narcotics in the vehicle, or the like.</p>
<p>So the alert to the so-called residual odor of drugs is just as probative to the question of probable cause as an alert to drugs themselves.</p>
<p>The fact that Aldo alerted to the door handle area of the car doesn't negate in any way the probable cause that Officer Wheetley had to search.</p>
<p>What it means is that the door handle area was where the scent of the illegal narcotics was the strongest.</p>
<p>It could have been narcotics coming out of that area, or coming out of the door seam, or could have been the fact that someone who had used narcotics was using the door handle to get in and out of the car.</p>
<p>Second, courts can determine reliability in this context.</p>
<p>They would look to the performance in the controlled training environment.</p>
<p>There is a real danger with suggesting that field performance records are -- are a permissible foray for defendants in suppression hearings to challenge the reliability of dogs because, one, as Justice Alito pointed out, it's not a controlled setting.</p>
<p>We don't know whether the dog did alert to residual odors of narcotics that had been in the car, drugs that were hidden and simply not found during the relatively--</p>
<!-- Antonin_Scalia--><p><b>Justice Antonin Scalia</b>: Would you -- would you allow counsel to ask about that?</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: --I think they could ask about it, Your Honor.</p>
<p>I don't think they could demand the performance records themselves.</p>
<p>And that would be a huge deterrent to law enforcement, even maintaining those records.</p>
<p>Third, Officer Wheetley and Aldo did train together for nearly a year before the search in question.</p>
<p>They did complete the 40-hour drug detection seminar at the Dothan, Alabama, police department.</p>
<p>And that certificate's at page 105 of the record.</p>
<p>And second, as Justice Scalia pointed out, all the incentives in this area are aligned with ensuring the reliability of drug detection dogs.</p>
<p>It's not in the police interest to have a dog that is inaccurate in finding contraband or that is inaccurate and putting an officer in harm's way.</p>
<p>Humans have relied upon dogs for law enforcement-related purposes, due to their extraordinary sense of smell, for centuries.</p>
<p>Dogs, trained drug detection dogs and explosive detection dogs, are invaluable members of the law enforcement community today.</p>
<p>We would ask the Court to reverse the decision below, which would act as a serious detriment to the use of that valuable tool.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: Thank you, counsel.</p>
<!-- Gregory_G_Garre--><p><b> Gregory G. Garre</b>: Thank you, Your Honor.</p>
<!-- John_G_Roberts--><p><b>Chief Justice John G. Roberts</b>: The case is submitted.</p>
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Fri, 02 Nov 2012 21:21:06 +000083383 at http://www.oyez.orgIllinois v. Caballes - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2004/2004_03_923/argument
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<a href="/cases/2000-2009/2004/2004_03_923">Illinois v. Caballes</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Lisa Madigan</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: We will now hear argument in Illinois against Caballes.</p>
<p>General Madigan.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Thank you, Justice Stevens, and may it please the Court:</p>
<p>This Court has made clear on several occasions, including 21 years ago in Place and 4 years ago in Edmond, that a sniff by a drug-detection dog is not a Fourth Amendment search, and if something is neither a search nor a seizure, then it requires no Fourth Amendment justification.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, we've held that it's certainly not a... a full-blown search.</p>
<p>It's not a search in the classic sense, but a Terry stop isn't an arrest in... in the classic sense either.</p>
<p>We... we have said that that is a kind of seizure.</p>
<p>Why do... I think your... your argument assumes that this for... for purposes of search analogies that something is either a... a full-dress search or it's not a search at all.</p>
<p>Why isn't there a... a possibility of... of a kind of middle ground searches just as there is on seizures?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Well, this Court made clear in Arizona v. Hicks that it did not want to go down the road of creating something known as a quasi-search so that courts and police officers would be in the position of trying to determine whether or not something was a search or not.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Oh, I... I can... I can just imagine the problems, but I mean, what... I think what's... what the... what's bothering me about the case is that if we persist in... in saying that... that it's... that it's an either and or question with no question with no possible gradation, then I assume nothing prevents the police from taking the dogs through every municipal garage in the United States and I suppose there's nothing that prevents the police from taking the dogs up to any homeowner's door, ringing the bell, and seeing if the dog gets a sniff of something when the door is opened.</p>
<p>We're... we're opening rather a... a large vista for... for dog intrusions, and... and that's what's... that's what's bothering me.</p>
<p>Why... why should we... why should we open that vista if there is a possibility of a... of a middle ground that would prevent it?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Well, I would start with the reality that dog sniffs by their very nature, as this Court recognized in both Place and Edmond, are very unique both in terms of the manner in which the sniff is conducted, as well as the content of... of the information that the sniff reveals, so that a dog sniff is only going to be able to reveal the presence or absence of contraband.</p>
<p>And this Court has recognized that individuals have no privacy interest in the possession of contraband.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Does that imply that your answer is yes to the question?</p>
<p>If we say, as you urge, a dog sniff is not a search, then the police are free to parade up and down every street in the country with dogs sniffing car trunks.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Yes.</p>
<p>Because a sniff is not a search, a police officer would be able to take a narcotics-detection dog down the street with him or her.</p>
<p>I can tell you that because of the limited resources... and this is a point brought up in the Illinois Association of Chiefs of Police amicus brief... that that is not likely to occur.</p>
<p>In addition, I can also tell you that in the State of Illinois, the Illinois State police do not train their dogs nor do they use their dogs on people.</p>
<p>They only use them on objects.</p>
<p>But yes, in answer to both of your questions, because a dog sniff does not constitute a search, dogs could be used to walk down streets.</p>
<p>They could, hypothetically, be used in parking lots, and at times they are used in parking lots.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But they are used.</p>
<p>I mean, we don't have to make it up.</p>
<p>From cases we've had here, we know that they're used in places like bus depots to... to sniff luggage that... that passengers have carried through on... on buses.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Yes, they are.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And the republic seems to have survived.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: I agree.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: One could characterize those episodes under the, quote, special needs doctrine.</p>
<p>I mean, we are exposed to searches at airports that we would not put up with walking up and down an ordinary street.</p>
<p>So the dogs at the terminals one expects nowadays.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No.</p>
<p>These aren't sniffs for... for explosives.</p>
<p>These are sniffs for drugs and... and these... these are not buses that are coming in from France.</p>
<p>They're coming in from one American city to another.</p>
<p>And... and there's no more need in... in that case than there was in this case.</p>
<p>It was just a good... a good place to find criminals who were carrying unlawful drugs.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: In the present case, Mr. Caballes was traveling from Las Vegas, Nevada apparently on his way to Chicago, Illinois.</p>
<p>He was pulled over for speeding.</p>
<p>Another officer overheard when Master Sergeant Gillette called in to dispatch that he effected--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I interrupt, General Madigan?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --You may.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: He was pulled over for speeding at 71 miles an hour in a 65 mile an hour zone on I-80.</p>
<p>Right?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Yes, that is correct, Justice Stevens.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Did they know in advance that he was someone to look for?</p>
<p>Because I don't imagine you arrest everybody on I-80 that goes 70 miles an hour.</p>
<p>I've done it many times myself.</p>
<p>[Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Inadvertently.</p>
<p>[Laughter]</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: We always like to have you in Illinois.</p>
<p>Obviously, the Illinois State Police have the ability to pull somebody over whether they're going 1 mile over the speed limit or 26 miles over the speed limit, but there is nothing in the record to indicate that they were looking for Mr. Caballes as he was traveling eastbound on I-80 towards Chicago.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Does the record tell us what time of day it was?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Yes.</p>
<p>It was approximately 5:10 p.m.--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Thank you.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: You... you answered one of the earlier questions about the possible intrusiveness of dogs everywhere by saying, well, you don't have a privacy interest in contraband, but that's never true.</p>
<p>You don't have a privacy interest in the murder victim's body, but you still have to have a warrant to go in and get it.</p>
<p>So that... that just doesn't work unless I missed something.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --You do not have a privacy interest in contraband, as this Court has recognized in the Jacobsen case.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Yes, but you have a privacy interest in your person and in your place, and that's what we're talking about.</p>
<p>So that seems to me that that just doesn't help us.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Well, there is a distinction that's made in terms of Fourth Amendment protections that are given to homes and people versus cars.</p>
<p>Ever since the Carroll case, it has been recognized that a warrantless search of a car can be done if they found probable cause.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But that's because of the nature of the place being searched not because of the nature of what you're searching for.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Not necessarily.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So it just can't be that... so the fact that you don't have a privacy interest in contraband, it doesn't seem to me... I... I don't think you need that argument.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I think you should use it.</p>
<p>[Laughter]</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: I... I plan on continuing to use it.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why... why do you... are you sure that Kyllo, you know, the... the imaging case, would have come out the same way if the only thing... the only thing... that the imaging could pick out is not any of the other private activities in the home, but the only thing it could possibly discern is a dead body with a knife through the heart?</p>
<p>Are you sure the case would have come out the same way?</p>
<p>I'm not at all sure.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: I would hope the case would come out differently than--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, what--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Do you have any authority for that other than Justice Scalia's speculation about how this--</p>
<p>[Laughter]</p>
<p>--how his Kyllo case might have been written?</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --What about a house and... and the use of a dog to sniff around a door access or a house just because the police think, you know, it's possible this is somebody growing marijuana in the basement or something?</p>
<p>Is that all right?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --I would argue that, yes, it is all right to walk a dog around a house, but then as Justice--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How do you... how do you reconcile that with the heat sensor case then?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --The thermal imager that was used in the Kyllo case was able to reveal intimate details of the house.</p>
<p>A dog sniff is only going to reveal the presence or absence of contraband, and because of that, that's where we suddenly get into the tension between Kyllo and Place and--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What if the dogs get a little more sophisticated in the future and can also smell a certain kind of perfume, something like that?</p>
<p>Would then the whole analysis change?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --Well, then you would end up in a situation as to whether or not an officer had probable cause when a dog, in fact, alerted.</p>
<p>If he was alerting to the presence of perfume as opposed to narcotics, there--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And how would you know whether the... the dog... I don't think the dog alerts, as I'm alerting, for one reason or another.</p>
<p>He just alerts.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --Well, they're very well trained dogs.</p>
<p>In fact, in the State of Illinois, the dogs and their handlers go through 320 hours of training, and they're specifically trained to only alert to narcotics.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I just learned this morning that some very well trained dogs that are trained to alert for explosives will also alert for certain kinds of rubber in a tire.</p>
<p>They didn't realize that.</p>
<p>And I think it's entirely possible that dogs would... there will be false alerts by... by dogs because it's triggered by something that... that is not really anticipated.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: One of the things that does take place during the training of these narcotics-detection dogs is to make sure that they are not alerting to things that are not narcotics or... I don't know exactly how the explosive training is conducted because we don't train our dogs in Illinois for explosives, but they purposely train them on narcotics not to alert to plastic wrap that is frequently the container used for narcotics, not--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So you would agree the analysis would be different if there could be an innocent cause of the alert as well as the contraband being the cause of the alert.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --It depends.</p>
<p>The analysis would be different if the dog was known to or had been trained to actually alert to the non-contraband.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Or if that happened a large percentage of the time.</p>
<p>I mean, surely you'd concede that the search is unreasonable if, for every... every one time, you... you make somebody open his bag because the dog actually smells narcotics, 99 times you make somebody open his bag because he has apples in it.</p>
<p>I mean, wouldn't that go to the reasonableness of--</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Well, it would actually go to whether or not that dog provided... that dog's alert provided probable cause to conduct a search.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, do we... we don't have the probable cause question before us, do we?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: You do not have the probable cause question before you.</p>
<p>This dog was determined to be reliable by the trial court and the Illinois Appellate Court, and it was not part of the Illinois Supreme Court's decision.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What again in your view is the best distinction from Kyllo?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Two things.</p>
<p>One, the thermal imager used in Kyllo was able to reveal intimate details that individuals--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Like what?</p>
<p>I thought it was just heat?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --Yes.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --There was some disagreement on the Court about exactly what it revealed, but in terms of intimate details, it then allowed somebody--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Excuse me.</p>
<p>What details?</p>
<p>It is a device that measures heat.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --Because it could measure heat, it could also potentially determine when somebody was taking a bath, taking a sauna, and doing other intimate things in the house.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I think there was a reference to my lady's bath in the opinion.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: A nice turn of phrase, as I recall.</p>
<p>[Laughter]</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What was... and what was the second?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: The second one would be the distinction between houses and cars and the protections that houses are given under the Fourth Amendment, which are far greater than the protections that people have in their cars.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, so you think if this were a house, that the Kyllo case would apply?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: If this were a house in the situation, it would certainly bring out the tension between Kyllo and Place--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Wasn't there... didn't Kyllo... wasn't what... what the Court was worried about in Kyllo not just the relatively crude heat imaging that existed in the case before it, but the prospect of more and more sophisticated heat imaging which... which we had evidence was already in development that would enable you to see people moving around a room?</p>
<p>I thought the case referred to that.</p>
<p>Now, are we going to have more and more... what's going to happen with dogs?</p>
<p>I... I can't imagine that... that this thing is going anywhere other than smelling narcotics and smelling bombs.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, but you would argue that the same rationale should apply if, instead of using dogs, you had some sophisticated device that would buzz or ring a bell or something whenever the odor of... of narcotics was present, wouldn't you?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --I would argue that.</p>
<p>So if there was an ability to create a... a mechanical dog, for instance, we would again say that the use of a mechanical dog sniff would not be a search and therefore would not--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: There's nothing magical about the fact that it's an animal rather than a sophisticated device.</p>
<p>It has better detection capacity than a human being does.</p>
<p>That's the only difference.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --You are correct.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: In... in discussing the... the answer to the... the Kyllo issue, you... you place an emphasis on the protection given to a house.</p>
<p>Would you go back to Justice O'Connor's question and my earlier example?</p>
<p>Is it still your answer that the police can walk dogs around the foundation of the house or take a dog to the front door and ring the bell and see what it... what it sniffs when the door is opened--</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: I would--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: --without there being a search and hence no Fourth Amendment concern?</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --Yes, Justice Souter, I would say that that is possible because the sniff itself is not a search and it only reveals the presence or absence of contraband, which is something that the individual does not have privacy expectations--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<p>But then... then the... then there is no significance in the house.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --There is potentially significance in the house because the--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, when does... when does it occur?</p>
<p>I mean, if... if... first you say the... the house is... is a matter of significance for Kyllo analysis.</p>
<p>We're trying to draw a distinction, if there is one, between Kyllo and this, and you say they can go to the house.</p>
<p>They can sniff the foundations.</p>
<p>They can go to the front door, et cetera.</p>
<p>I don't see that the house, in fact, is functioning as a distinction at all.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: --This Court's precedents have shown us that in fact Fourth Amendment protections are higher in the home than they are in the car.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Oh, I realize that, but it seems to me your basic argument, if I understand it, is there is simply no search here, and because there is no search here, it doesn't matter whether you're dealing with a house or a parking lot or a car on the road.</p>
<p>No search is no search.</p>
<p>So for purposes of... if I... I want to understand your case, and as I understand it, for purposes of your case, there is no significance in the house because there doesn't have to be.</p>
<p>The question doesn't arise because there's no search.</p>
<p>Is that--</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Justice Souter, that is absolutely correct.</p>
<p>A search, as far as we are concerned... and I believe it's based on the precedents of this Court... is a sniff is not a search, and therefore it requires no Fourth Amendment justification.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: You said there's no disturbance of one's privacy and so that distinguishes the dog sniff from some other governmental intrusions.</p>
<p>But dogs can be frightening, humiliating.</p>
<p>It seems to me that there is some association with the idea that I have a right to be let alone by my government and having a large dog circle my car.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: There are in this country millions of dogs, many of the types of dogs that are used by narcotics detection teams, such as Labrador retrievers and shepherds, are identical to the pets that people own.</p>
<p>We encounter them in the parks, on the streets, and I would contend that an officer cannot be in the position of making a determination as to whether or not the individual that he encounters is going to be frightened by the dog.</p>
<p>Mr. Justice Stevens, if I may, I'd like to reserve the remainder of my time.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, you may save your time.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Thank you.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Mr. Wray.</p>
<p>Argument of Christopher A. Wray</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: Justice Stevens, and may it please the Court:</p>
<p>There's no dispute that respondent here was lawfully stopped based on probable cause.</p>
<p>There's also no dispute that the entire stop took less than 9 minutes.</p>
<p>The question is whether a second officer's use of a drug dog to sniff outside of that car during those 9 minutes required some separate Fourth Amendment justification.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do you agree with... with General Madigan that it doesn't make any difference whether the... the dog is a... is a mechanical instrument or not?</p>
<p>Do you agree it makes no difference?</p>
<p>I thought that one of the... one of the points in... in the imaging case was that this was a new technology which didn't exist and that although the ordinary rules in 1791 was that there was no search unless... you know, unless you enter the house or unless you... you physically intrude upon the person's... at least the person's clothes, we made an exception to that rule because of this new technology that enabled you to find out things without having to intrude into the home or into the person.</p>
<p>Now, but... but this is not a new technology.</p>
<p>This is a dog and... and they had that ability in 1791 just as they had it today.</p>
<p>And the rule that when there's no intrusion, there's no search... there's no reason to depart from that rule with respect to a dog although there would be with respect to some sophisticated new technology that would enable you to find out all sorts of things.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It seems to me you shouldn't... you shouldn't assume that... that the fact that this is a canine makes no difference.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Are you going to rely on the fact that dogs were trained to do this sort of thing back in the 18th century?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: I'm going to rely on... on three distinctions between this case and Kyllo, Justice Stevens.</p>
<p>The first is that the three points that the Court looked at in Kyllo were: one, as has already been referenced, the fact that it's a home, the most sacred place under the Fourth Amendment; second, that it revealed certain intimate details; and third, that that was a technology--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It was potentially revealed.</p>
<p>It did not actually reveal any details.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --As... as General Madigan referenced, there is obviously some disagreement within the Court on that issue, but the... the fact was that the technology in Kyllo revealed information about heat in the house which could be thought to reveal intimate details about the house.</p>
<p>The third point in Kyllo, which I think Justice Scalia is referring to, is that that was technology that was not in general public use.</p>
<p>Dogs have been used by law enforcement across the country since Place and before to sniff everything from--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But not in 1790.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --Not--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Did you come here--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You don't know that, do you?</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: --Did you come here having researched all about dogs in 1790?</p>
<p>[Laughter]</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --Justice Kennedy, I cannot, I regret to say, tell you what dogs were doing in 1790.</p>
<p>I can tell you... and this is maybe a factual thing that might be of interest to the Court... that the dogs who train... who are trained to alert to detect things... it's not that they are sniffing things that all dogs can't already smell.</p>
<p>It's rather that they are trained to let the handler know that they've smelt whatever it is they've been trained to smell.</p>
<p>So the smells that are coming out of Respondent Caballes' car are exposed to every dog.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But do you really think this would be a different case if the officer had a device that did exactly what the dog... dog did?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: We... our position would still be, Justice Stevens, that as long as the device only revealed, as this does--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I would think you'd take--</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --the absence or presence of contraband, it would still be constitutional.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why do you rely on the... in... in distinguishing Kyllo, why do you rely on the house if there's no search?</p>
<p>Why do you have to rely on the fact that there was a house involved there?</p>
<p>You... you listed that as one of your three distinctions.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: We don't believe we have to rely on it, Justice Souter.</p>
<p>We do believe that there were three things that were important in Kyllo.</p>
<p>The fact that it was a home was one of those things.</p>
<p>Again, the... the fact of a home, the fact that it was technology not in general public use, and--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But that didn't go to whether it was a search or seizure.</p>
<p>I think it goes to whether it was an unreasonable search or seizure.</p>
<p>Don't you think so?</p>
<p>That what... what might be unreasonable with respect to a home would not be unreasonable with respect to a suitcase?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --Yes, Justice Scalia, that's correct.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But... but your... is... is it... I understand it to be your position that there simply is no search here.</p>
<p>Period.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: That is correct, Justice Souter.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Because it's a dog sniff.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: We would... we would submit this is not a search because, as this Court recognized in both Place and Edmond... and the Jacobsen case is also significant because the Court said that the reason this is not a search, there using the dog sniff by analogy, is because it compromises no legitimate privacy interest.</p>
<p>The language of the Court in Place is significant because it says that we are aware of no other investigative procedure that is so limited in both the manner in which the information is obtained and in the content of the information revealed.</p>
<p>That language goes not only to why it's not a Fourth Amendment search but why the use of the dog sniff during a probable cause traffic stop here, where it doesn't prolong the duration, does not transform an otherwise lawful seizure into an unlawful one.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: All right.</p>
<p>Do you... do you think it's... it's reasonable to say that if the police take dogs simply onto private property to sniff the foundations of houses, if they take dogs to the front door and ring the bell so that they hope the door will open, that there is... there is no compromise of a privacy interest?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: Well, there would be a question as to whether the officer, the human officer, that is, could be on private property... I take it from your hypothetical, Justice Souter... in the first place.</p>
<p>But--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, I mean, the Fourth Amendment analysis after Katz doesn't... doesn't depend on trespass, and... and you have said up to this point that there is no search.</p>
<p>And then you have quite rightly said that we have had as a consideration in our minds analytically whether it's fair to say that what the police were doing involved any compromise of a privacy interest.</p>
<p>So I'm assuming... I'm assuming that the police can at least get to the foundation with a dog and they can certainly walk up to the front door and ring the bell.</p>
<p>And if they do that with a dog, for the purpose of letting the dog sniff and alert, if there's anything to alert to, is it fair to say that there is no compromise of the privacy interests of the people who own the house?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --Our position would be... the answer to that question is yes.</p>
<p>The Court does not have to resolve that issue to decide this case.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Of course, we could separate the home from the... from what happened here and still validate the search here if we held that it was a search, but was a reasonable one since all you find is that the person was carrying contraband.</p>
<p>It's the only thing that's disclosed.</p>
<p>Whereas, if you... if you did the same thing with... with regard to a house, which is a more sacrosanct part of one's privacy, it might be an unreasonable search.</p>
<p>We... we could reach that result if we wanted to, couldn't we?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: I think you could, Justice Scalia.</p>
<p>It's important to distinguish--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: On the other hand, if it were a drug-selling neighborhood or around a park where drugs are frequently sold, would it be legitimate in your view for the police to take drug-sniffing dogs and walk around the public street where cars are parked around that known drug-selling area and see if they could sniff out some contraband in the cars?</p>
<p>Is that okay?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --We believe it would be okay, Justice O'Connor.</p>
<p>It would be important not to use the dogs in a way to constitute a new seizure because in that case, you're not talking--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I'm... I'm assuming parked cars.</p>
<p>You haven't interrupted anybody.</p>
<p>Nobody is in the car, parked on a public street.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --In that instance, we believe that would be acceptable under the Fourth Amendment.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So you... you give no significance to the fact that this dog sniff was in the course of a lawful stop where the citizen's rights had already been curtailed to a significant extent?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: We believe, Justice Kennedy, that the... that that context here makes this an even easier case under the Fourth Amendment, that is, the dog sniff not being a search compromising no legitimate privacy interests during the course of a lawful probable cause stop, which we know from Atwater... the officer could have simply placed the woman under full custodial arrest and taken her down to jail... was not an activity that transformed the seizure into an unlawful one.</p>
<p>The Illinois Supreme Court's concern and where we think they got off track was that they were concerned that the use of the dog sniff during this 9-minute traffic stop was that it transformed it... it used the language that it transformed the sniff into a drug investigation.</p>
<p>We would submit that the Fourth Amendment is about the reasonableness of searches and seizures and not about what the scope of the government's investigation is.</p>
<p>And in that sense, the court got off track.</p>
<p>These... this is a... this is a means that law enforcement has been using properly in reliance on this Court's decision in Place, reinforced just 4 years ago in Edmond, for more than 21 years to detect everything from drugs to bombs to smuggled... we have beagles in the airports that smuggle produce that's being smuggled in.</p>
<p>Dogs are used all over the country with great effectiveness in law enforcement, and the... we... that is a... a technique that we want to encourage law enforcement to pursue.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Are there... are there any manuals for law enforcement officers with respect to the time and place of using dogs, or it's just open season?</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: Justice Ginsburg, there is extensive training of law enforcement to use dogs.</p>
<p>It's a multi-week program that requires--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I don't mean the training to make the dog alert properly.</p>
<p>How the police will use them, when, under what circumstances.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: --Justice Ginsburg, each agency has different policies about when they use dogs and what purpose they're trained for.</p>
<p>In this case, as you heard, they're being used in the context of highway interdiction, and so they're trained to sniff around vehicles specifically.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: --Thank you, Mr. Wray.</p>
<!-- christopher_a_wray--><p><b>Mr. Wray</b>: Thank you.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Mr. Meczyk.</p>
<p>Argument of Ralph E. Meczyk</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Justice Stevens, and may it please the Court:</p>
<p>The State does not offer any Fourth Amendment justification whatsoever in regards to... in this case.</p>
<p>It argues instead that there... there was no need for any justification, and that is incorrect for two reasons.</p>
<p>The dog sniff in this case invaded a Fourth Amendment interest of Mr. Caballes in the context of a routine traffic search.</p>
<p>The sniff in this case was, in fact, a search.</p>
<p>Albeit it was a limited intrusion, it was still a search nonetheless.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why... why do you say that?</p>
<p>I mean, is... is anything that I observe a search?</p>
<p>I mean, suppose I... I'm a policeman and... and I'm looking out for, I don't know, people with a nervous tic because I think that that might be somebody who's about to commit a crime or has committed a crime.</p>
<p>Have I searched that person because I... I observe something external?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Any observation I think--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Is there no difference between an investigation and a search?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --There is in this case... see if I understand you correctly.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No.</p>
<p>It seems to me your brief and... and your statement here both seem to assume that there's a search whenever the police investigate.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Well--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But that's not so.</p>
<p>They... one can investigate without searching.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well, to... see if I understand your question correctly.</p>
<p>If you're looking with someone with that nervous tic, that would be something in open view or plain view.</p>
<p>That's not the type of investigation I'm talking about.</p>
<p>There is in fact, most respectfully, an investigation technique here.</p>
<p>There's an investigation measure.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes, but that isn't the--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What about a policeman who smells marijuana coming out of a car or a residence.</p>
<p>He's walking down the street, public street, and he smells marijuana.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: The only way I can analogize that, Justice Kennedy, is that it... that is akin to a plain smell or plain view.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --All right.</p>
<p>So once you say that, you realize that there are billions and billions of searches that go on every day that the police don't have to justify at all.</p>
<p>They just look around.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: I don't--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Okay?</p>
<p>There are billions of them.</p>
<p>So the real question is do they have to give a justification for this.</p>
<p>And the argument that they don't is simply that it's not in the person's house.</p>
<p>When you go out in a public place, even in your car, you might run into people or animals with sharp noses.</p>
<p>And a lot of them can detect marijuana.</p>
<p>And you know, maybe it's a Limburger cheese.</p>
<p>I don't know.</p>
<p>[Laughter]</p>
<p>But people are sniffing things that they don't sniff through windows into your house, but they do get odors in your car on the street.</p>
<p>So this is the kind of search.</p>
<p>Yes, it's a search, but one that the police don't have to justify.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --But this is with a specific investigative tool.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, it's a specific investigative tool when I put on my glasses to look through a window.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Well, this is--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I don't see why it has to... why that matters if in fact all... if you go into a car, a police car, and you have... drive through the neighborhood and look around, you are using a specific investigative tool, the police car, to look around and find out what's going on.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --This is a far more... most respectfully, this is a far more sophisticated investigative tool.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What I'm trying to get to is in my own mind it's not a question of the tools.</p>
<p>It's a question of the expectation of privacy.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Then maybe I can see if I could answer your question.</p>
<p>Mr. Caballes in this case indeed had an expectation of privacy.</p>
<p>When he was asked by the police officer in this case if he can consent to the search, he said no.</p>
<p>He did not want that law enforcement officer looking in--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But that never--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes, but both Place and Edmond, opinions from this Court, said sniffs are not searches.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well, I--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Do you want us to reverse that?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Justice O'Connor, I do not... I do not want you to reverse Place.</p>
<p>Place, no pun intended--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, and Edmond also said it's not a search.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well, there were--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: It was the stop of the cars in that case that caused the result.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --The way I understand Place it was contextually limited.</p>
<p>In Place, the whole purpose of the seizure, the taking of the luggage, was to submit it to a drug-detection sniff.</p>
<p>That is the opinion authored by Your Honor, that specifically stated... I'm not going to say took for granted, but it specifically stated that the... the context... and that's what we have to look at Place... the--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, fine.</p>
<p>We had a context there where we supported it, but in the process said the sniff, the dog sniff, was not a search.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well, I... I--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: So you want us to say something else here.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well, I think that first in... in that case, in Place, the... the Court--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: The context here was a legitimate traffic stop.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --But it was... unlike Place, the legitimate traffic stop here was completely unrelated to the purpose of the dog sniff.</p>
<p>There was an absolute--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: The dog sniff is not a search.</p>
<p>What difference does it make?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well, again, I would again respectfully assert that the dog sniff is a search and the way Place was decided, first, the decision had to be made, in the context of... of that case, what was worse.</p>
<p>What were they going to do with the luggage?</p>
<p>Were they going to open the luggage first?</p>
<p>So, of course, the Court had to decide in that case that it wasn't that kind of a... a search.</p>
<p>It wasn't as egregious a search as actually opening the luggage.</p>
<p>Then you--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: This... the trunk of the car didn't have to be opened here.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I'm sorry, Your Honor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: The trunk of the vehicle did not have to be opened here.</p>
<p>You're talking about a dog sniffing on the exterior of the vehicle that was legitimately stopped for a traffic violation.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Again, in this context, unlike in Place, there was absolutely no relationship between the... the dog sniff and the dog sniff of Caballes' trunk and the sniff of the luggage that was placed at LaGuardia Airport in Place.</p>
<p>There's a great distinction.</p>
<p>Moreover--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Suppose a policeman follows me around.</p>
<p>He just... just follows me around, observing with his... with plain eyes.</p>
<p>Now, is that a search?</p>
<p>Does he need probable cause to do that?</p>
<p>Now, he's wasting his time and he's wasting public money and maybe he should get fired for doing it, if he has no reason to follow me.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --It's not a search.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And maybe... maybe I'd have a harassment action against him if he does it, you know, blatantly.</p>
<p>But is that a search?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It is not a search.</p>
<p>If he follows you--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay.</p>
<p>So... so the mere fact that one is in investigating something doesn't make it a search.</p>
<p>What does make it a search?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Well--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The fact that you find out something?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I think here the most distinctive point here is that Caballes had already been stopped unlike the hypothetical that you just presented to me.</p>
<p>Caballes was already stopped for one... for probable cause.</p>
<p>There's no question about that.</p>
<p>But then now the police launch into a wholly unrelated investigation that's--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You think it would be better if he hadn't been stopped?</p>
<p>If... if they just... just randomly walked up to somebody who was going through a toll booth and had the dog sniff the car, you think that would be a better case--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I think--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --for allowing it than... than yours?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Even in that case, even in a hypothetical where they used the dog for a toll booth, I have a problem with that.</p>
<p>That to me is a search.</p>
<p>It's different than... I would assert it's different than if they walked... one of the hypotheticals that the Justices asked my adversary in this case, when they asked, well, what if they walked the dog instead around a... parked cars or parked cars at a stadium?</p>
<p>It depends for what purpose they want to walk those parked... that dog around those parked cars.</p>
<p>My assertion is--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, they said it's to find out if there's any contraband.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I'm sorry, Your Honor.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: The answer was they are at liberty... the police are at liberty to use dogs to find contraband.</p>
<p>And your... Illinois I think was very candid with the Court in saying we have taken from your decisions that a dog sniff is not a search.</p>
<p>So anything else is a matter of police policy.</p>
<p>It had nothing to do with the Fourth Amendment.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Well, I... I strongly differ.</p>
<p>I have to look at the purpose that they are going to use the dog for.</p>
<p>This Court--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, does it matter if, for instance, in today's world on Capitol Hill we're concerned about terrorist attacks.</p>
<p>What if the dog is trained to alert to explosives?</p>
<p>Now, can the police just decide they're going to sniff any car that's parked on Capitol Hill?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Justice O'Connor, it depends on the purpose.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes or no, in your view.</p>
<p>The purpose is to disclose potential explosives in a parked vehicle.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: The answer is yes.</p>
<p>I have no problem whatsoever.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Wherever it is.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Wherever it is because I look at it as a public safety exception.</p>
<p>And this Court in the Edmond case specifically condemned a general search... a general crime... let me use the exact words.</p>
<p>General interest in crime control, to quote the Edmond case.</p>
<p>And that's--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I still want to go back to my question because I think you may have an answer to it and I want to focus you--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I'm struggling, yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --I want to focus you on the question.</p>
<p>I think what you're doing, which is a reasonable thing to do, but it isn't my approach, look to the English definition of search.</p>
<p>I say forget that.</p>
<p>Let's look to the Fourth Amendment because there are a whole range of searches that don't even fall within the Fourth Amendment in the sense that we don't need a justification.</p>
<p>And I take Place as saying that dog sniffs is one of those, whether it does or doesn't use the word English search.</p>
<p>So I want to know why it is that this dog search is one of the ones that's a Fourth Amendment search, i.e., one of the ones that requires a justification in terms of what the Fourth Amendment is about, privacy.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It invades a public... I'm sorry.</p>
<p>It invades a private space that in this particular case the respondent Caballes had a privacy interest in, that he wanted to exclude the whole world from going inside his trunk.</p>
<p>That's the difference.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but you don't respond to one point in Place, if I remember correctly.</p>
<p>It must be a legitimate expectation of privacy, and if the only thing the dog can detect is something illegitimate, how can you say there's an invasion of a legitimate expectation in privacy?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Well, it is... it's true that one does not have an expectation of privacy in contraband, but by the same token, I have an expectation or Mr. Caballes had an expectation of... of privacy of what's inside that closed trunk, his car.</p>
<p>The Carroll doctrine is still good law.</p>
<p>We still apply the Fourth Amendment in cars.</p>
<p>It's true that the home is sacrosanct, but just because it's a home, it's not a talisman where... where the Fourth Amendment no longer applies.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: There was something you said in... in your brief that I thought was unclear.</p>
<p>So may I ask you--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Of course.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --if Officer Gillette, the one who did the arrest for speeding, had a dog in the back of his car, instead of having the second officer come with the dog, would it have been permissible?</p>
<p>I thought you had conceded that it would be a different situation if the dog was already there when the car stopped.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: First of all, Justice Ginsburg, my recollection is that Trooper Gillette, who was the officer who stopped Caballes, did not have a... a dog in the car.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: No, he didn't, but I'm asking you to imagine that he did.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: I see.</p>
<p>If he had a dog in the car and the dog just happened to have alerted without his cuing the dog or walking the dog... and I'll answer that in a moment too... that would be pure serendipity.</p>
<p>That might happen.</p>
<p>If... if the dog just happened to have alerted.</p>
<p>But if the troopers deliberately drove the car close by... and in reality, that's not what happens.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: No.</p>
<p>I would like to take this scenario as it is except that when the officer gets out of the car, his dog comes with him.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Okay.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: This is very... make no other changes except that Gillette has the dog and Gillette with the dog go to Mr. Caballes' car.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: My understanding of the way this works, Justice Ginsburg, is that he just couldn't go up to the car without... and the dog would alert.</p>
<p>My understanding of the way these dogs are trained is that they specifically... that the officer has to walk the dog around the car, the vehicle, first of all.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: He does that.</p>
<p>He does that.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: He does that.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yes, in this case.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: He does that.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: To cue the dog.</p>
<p>In other words, tell him it's not playtime anymore, that he has to work.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: To trigger something in the... in the canine brain.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you... I'm--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Would it be bad?</p>
<p>Would it be bad if that's what he did?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It wouldn't be bad that's what... well, yes.</p>
<p>In this case it's very bad because it's a search.</p>
<p>There's no question.</p>
<p>I'm not coming off of that.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --But I'm... I'm trying to understand what you meant in your brief when you said if the dog had been in Gillette's car when Gillette stopped Caballes, the situation would have been different.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: I... I think what I meant there... there would have been... it would have been purely happenstance, almost like plain view.</p>
<p>It would have been... without him even cuing the dog or starting to walk the dog around, my answer to that Justice Ginsburg is that that would have been all right.</p>
<p>Except now that... the more I think about it, I'm not so sure that it would be all right.</p>
<p>And my answer to... and the reason for that is I think in that case the officer, if he could do such a thing and the dog would alert, would be exploiting the situation, would just be taking the dog and walking him around the car and seeing that the dog alerted.</p>
<p>So in other words, there... there would be, I think, an exploitation of... of the... of the traffic stop.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So then it really makes no difference whether it was Gillette who had the dog in his car or whether the dispatcher called another officer who had the dog.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: That is correct, Your Honor.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: It doesn't... so you're retracting that.</p>
<p>You, I think, were asked but I'm... I'm not sure you fully answered.</p>
<p>Suppose the police, as Atwater would allow, arrested, made a full arrest of Caballes, and then they impound his car.</p>
<p>In the place where they put it, couldn't they have a dog go around the car there?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Yes.</p>
<p>Yes.</p>
<p>I... if we had an Atwater situation... in this case there wasn't an Atwater situation because there was first a warning given.</p>
<p>You're correct.</p>
<p>There was a warning given.</p>
<p>I'm sorry.</p>
<p>The officer Gillette told Caballes he was going to give him a warning.</p>
<p>So unlike the Knowles--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But he could have.</p>
<p>He could have.</p>
<p>I mean--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --He could have, but he didn't.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --is... is--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: He didn't.</p>
<p>Instead, he chose to treat this as more of a Knowles situation.</p>
<p>This case is... is on all fours, no pun intended, like Knowles.</p>
<p>In other words, in the... in Knowles v. Iowa, the Court... a case of this... I'm sorry.</p>
<p>Let me untwist my tongue.</p>
<p>In Knowles v. Iowa, you had a... you had a traffic stop and after the traffic stop, there was a statute that said unrelated to the traffic stop, you can go in and search.</p>
<p>And this is the same thing.</p>
<p>This officer here Gillette treated Caballes as the officer in Knowles in... treated Mr. Knowles in Iowa.</p>
<p>It's the exact same thing.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but the... the difficulty that I have with that argument is take the... take the case of... of the arrestable offense in which it is undoubtedly the case that although the police don't normally arrest, they... they can.</p>
<p>Your... if I understand your argument, you're saying if they, in fact, do arrest, they may then take the dog around the car, and indeed, I presume you would agree, they could make an inventory search because they've got to protect themselves against claims that they lost property and so on.</p>
<p>So there's no question that in that case, as... as you have argued it, they could make a full-blown search and... and certainly can use the dog.</p>
<p>But if they choose not to arrest on the highway, they can't.</p>
<p>My problem is how can you say that there is a reasonable expectation of privacy in case number two if you admit that the police can search in case number one.</p>
<p>How does that affect the reasonable expectation of privacy?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: To me, once a person is told that he is not going to be under arrest, it changes the whole complexion of the case.</p>
<p>I think it's a completely different... a completely different scenario.</p>
<p>We don't have an arrest.</p>
<p>It doesn't matter.</p>
<p>Atwater--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --Could the officer change his mind?</p>
<p>I mean, he... he did say I'm just going to give you a citation, and then he said, mind if I search your car.</p>
<p>This is before the... the dog showed up.</p>
<p>And suppose the person who had been speeding said, yes, I mind.</p>
<p>Don't search my car.</p>
<p>And then the police said, well, in that case I'm going to arrest you.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --It's a difficult question, but I have to look at what... I think reasonableness is judged.</p>
<p>Again, I'm going to remember what the... those cases taught.</p>
<p>I think what Knowles taught, that reasonableness is judged by what the police actually do as opposed to what they might have done.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Mr. Meczyk, I assume that your answer to whether it's lawful to have a... a dog at a bus depot just to sniff the bags of people who were coming off, without stopping them, but just... just to have the dogs there, that's unlawful.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It depends--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: For narcotics, not for bombs, not for... just... just for narcotics.</p>
<p>The police think, you know, a lot of narcotics goes on interstate buses.</p>
<p>We're going to put a dog in the bus depot.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --It's a little less problematic to me, Justice Scalia, than the type of stop I'm talking about here.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It's a little less problematic.</p>
<p>One, because it's a public place and I... I think--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, so is the road, for Pete's sake.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I know, but... but here I think there's a lesser expectation of privacy.</p>
<p>Well, I don't even want to go that far.</p>
<p>I... I have to answer your question.</p>
<p>I think that submitting the dogs without any... submitting the luggage without any reasonable articulable suspicion--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --unlike the case--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --unlike the case in... in Place, that that to me is still a search.</p>
<p>So--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay.</p>
<p>That's... that's what I think you should say.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --And I am saying it.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes, but that isn't... I take it you don't--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Sorry it took me so long.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --Is there anything wrong with the policeman himself taking a sniff?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It goes back to--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: It's the great Limburger cheese robbery.</p>
<p>[Laughter]</p>
<p>He stopped the car and he walks around.</p>
<p>Anything wrong with that?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --There's nothing wrong if he can detect Limburger cheese.</p>
<p>That to me is like plain smell.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: As awful as that--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So plain--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --As awful as it might be--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --All right.</p>
<p>So... so what you're saying is... and this must tie back to reasonable expectation of privacy.</p>
<p>All right?</p>
<p>Because it's okay for the policeman to do it, and it's okay for dogs to do it in the bus station, and it's okay to use a dog not in the bus station with a car if in fact you actually are going to put him under arrest, although here you had probable cause to do so, I take it.</p>
<p>And now you have to draw a pretty fine line.</p>
<p>But it's not okay where it's not the bus station, but it is the car and in fact the dog is doing the sniffing... and there are a lot of dogs around that can sniff... and you did have probable cause but you didn't say it.</p>
<p>And in face of Justice O'Connor's case which said that... you see.</p>
<p>Well, I mean, this is... this is--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I guess you--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --I mean, I'm not saying you couldn't draw that line, but I'm saying it's pretty tough I think.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I guess you're telling me I'm... I'm the underdog in this case.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, I don't know.</p>
<p>[Laughter]</p>
<p>I'm right?</p>
<p>Am I... I mean, that--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: It is--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --And you're going to draw the... well, I don't want you to repeat yourself necessarily.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --No.</p>
<p>It--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you had already drawn the line at a different place than Justice Breyer suggested because in response to Justice Scalia, you said if it... if it were going into the bus terminal just to sniff for narcotics, unlike explosives, it would be an impermissible search.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --Yes, correct, Justice--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: That would be--</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --That is correct, Justice Ginsburg.</p>
<p>What makes this particular so--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But... but is... why... why don't you simply say, look... have a very simple line.</p>
<p>If they can arrest, they can sniff.</p>
<p>If they can't arrest, they can't sniff without individualized suspicion going to drugs or whatever.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --I would agree with that if I use an... if... if you're referring to an Atwater type scenario.</p>
<p>If they have probable... if they decide to arrest, even though it's on a minor traffic case, such as Atwater, which was a seat belt, as long as it's... if... if it's minor and if the officer elects to choose to do a full-blown arrest, then all the consequences that follow from that arrest are... it's going to happen.</p>
<p>Excuse me.</p>
<p>It's going to happen.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But what... what is the answer to the reasonable expectation to privacy question in that case?</p>
<p>Isn't your expectation of privacy identical, whatever it may be, or isn't the reasonable expectation of privacy identical, whatever that may be, without regard to the discretionary decision of the officer to arrest or not?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: I... I think that when the officer does a full-blown arrest, as was envisioned in Atwater, you know that you... the person knows that he or she does not have a reasonable expectation of privacy.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But you're saying that the... the reasonable expectation of privacy depends upon the officer's discretionary judgment whether or not to arrest.</p>
<p>Isn't that what you're saying?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: Essentially yes, because I think that the officer takes a physical action.</p>
<p>It's just more than words.</p>
<p>It's also his deeds.</p>
<p>I think in Atwater, unlike Knowles... in Atwater, in that case, I think the... the officer did make an election, and there was a full-blown or a full-fledged arrest.</p>
<p>And I think there your... your reasonable expectation to privacy does, in fact, go out the window.</p>
<p>But this is so different.</p>
<p>This was just a warning.</p>
<p>Period.</p>
<p>It was nothing worse than a warning.</p>
<p>What makes this stop so pernicious is that it takes place in front of the whole world and is accusatory.</p>
<p>It is profoundly embarrassing, and it is humiliating to everyone on the street.</p>
<p>So if a person is stopped and the officer just decides to stop you for a minor traffic offense, that's the worst part about this case.</p>
<p>Just a minor traffic offense, really a frivolous offense, basically what any law-abiding citizen would happen to... it could happen to anyone.</p>
<p>And as this Court has said, even in Whren, there are so many multiple technical violations of... of... technical violations--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I mean, I think it's worse if... if you're subjected to it without having committed any violation at all.</p>
<p>Every time I travel abroad and come back into the country, customs officers have dogs and... and they parade the dogs through... through the baggage terminal.</p>
<p>Do... do I feel offended by that?</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --No, Justice Scalia--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: This isn't a public safety matter.</p>
<p>They're... they're not smelling for bombs.</p>
<p>They're... they're smelling for contraband.</p>
<p>And according to you, that is bad.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: --That... in that situation, when you enter the country... and this Court has said many times again... it's a border search.</p>
<p>There's nothing that I can argue against the border search.</p>
<p>It's the... or the functional equivalent of the border.</p>
<p>That is a border search.</p>
<p>I bring luggage to the airport, in today's world I have a lesser expectation of privacy.</p>
<p>If I know I'm traveling abroad and coming into the United States, that's different.</p>
<p>That's different in an airport.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay.</p>
<p>A bus station is different, though.</p>
<!-- ralph_e_meczyk--><p><b>Mr. Meczyk</b>: A bus station here inside the United States is different I think.</p>
<p>I... I look at your airport hypothetical as being... as dealing with a border.</p>
<p>If it's not at a border and I use your hypothetical, it's at O'Hare Airport or Reagan International Airport and they bring a dog up to sniff for drugs at the carousel, that to me is a search.</p>
<p>It's like... I think you said in one opinion once if it... you used the duck analogy, well, if it walks like a duck or quacks like a duck.</p>
<p>Here it's still a search.</p>
<p>It walks like a... a dog and it acts like a dog, but its specific function is in fact to search out in public and humiliate people.</p>
<p>If there are any further questions.</p>
<p>I respectfully ask this honorable Court to affirm the wise judgment of the Illinois Supreme Court.</p>
<p>Thank you.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Thank you, Mr. Meczyk.</p>
<p>General Madigan, you have I think about 3 minutes left.</p>
<p>Rebuttal of Lisa Madigan</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Thank you, Justice Stevens.</p>
<p>Let me make three brief points.</p>
<p>Number one, Justice Ginsburg asked a question about something that was in the respondent's brief, whether or not it made a difference if a dog was with Master Sergeant Gillette when he initiated the stop or if the dog was later brought, as was the case here, by Trooper Graham.</p>
<p>Really what Mr. Caballes is arguing for here is an inadvertence requirement which this Court very clearly held in Horton, there is no such requirement of inadvertence.</p>
<p>And so a law officer, if they are at a lawful vantage point, do have the ability to detect incriminating facts.</p>
<p>That is not something that has to occur inadvertently.</p>
<p>It can happen intentionally.</p>
<p>Second, Justice Scalia asked a question about plain view, and similar to plain view, a dog sniff does not effect an incremental search or seizure.</p>
<p>And therefore, similar to plain view, a dog sniff does not require Fourth Amendment justification.</p>
<p>And let me finally acknowledge something that Justice Souter brought up, which is whether or not, by walking a dog around a house, you in fact would have a search.</p>
<p>Let me... now, that is certainly a closer case than whether walking a dog around a car constitutes a search, which we say is not.</p>
<p>But ultimately you would reach a similar result because the principle is not going to extend to cars in the same manner in... in Kyllo as the thermal imager did.</p>
<p>Finally, if there are no further questions, we would ask that the judgment of the Illinois Supreme Court be reversed.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Thank you, General Madigan.</p>
<p>The... the case is submitted.</p>
<!-- lisa_madigan--><p><b>Ms Madigan</b>: Thank you.</p>
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Attribution:&nbsp;</div>
The Oyez Project </div>
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Featured:&nbsp;</div>
No </div>
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Fri, 09 Jan 2009 14:49:01 +000056637 at http://www.oyez.orgThornton v. United States - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2003/2003_03_5165/argument
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Case:&nbsp;</div>
<a href="/cases/2000-2009/2003/2003_03_5165">Thornton v. United States</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Frank W. Dunham, Jr.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in No. 03-5165, Marcus Thornton v. the United States.</p>
<p>Mr. Dunham.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The central issue in this case is whether the Government, having failed to prove that the police initiated contact with Petitioner Thornton while he was an occupant of his automobile and having failed to prove that when Mr. Thornton was arrested, that he was even within reaching distance of his automobile, may rely on New York v. Belton to justify a warrantless, suspicionless search of Mr. Thornton's automobile incident to arrest.</p>
<p>Now, it's the Government's burden...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, now, Belton did involve a car search after the suspects had left the car and were under arrest.</p>
<p>They weren't in a position to reach into the car.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: They were within reaching distance of the vehicle, Justice O'Connor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And arrested.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: They... they were standing by the side of the car at the... at the moment of arrest.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Right, but then they were disabled by the arrest.</p>
<p>They couldn't reach into the car, and after that, the search occurred, and we... we said, okay, that you could search if... for a recent occupant of the vehicle.</p>
<p>I just... I think the reasons articulated in Belton weren't all that clear, but it may cover this case.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, Your Honor, I... I believe that when you focus on the word recent, it's not a very bright line test unless you flesh it out and give it some definition.</p>
<p>I believe I was a recent occupant of my automobile this morning.</p>
<p>Somebody could say I was recently in that, but that wouldn't mean that they could go search it.</p>
<p>Well, the facts show...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do we know from the facts here?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: a lot less... the facts here show a lot less time, but recent doesn't give the kind of clear bright line that Belton said it was trying to draw because it... it's open to a lot of interpretation.</p>
<p>Our...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: How about moments?</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: You conceded... the Fourth Circuit said that it was conceded in the... that he was in close proximity to his vehicle when Officer Nichols approached him, and the record does conclusively show that Officer Nichols observed Thornton park and exit his automobile and then approached Thornton within moments.</p>
<p>You don't dispute any of that I take it.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: No.</p>
<p>Those... those are the facts of the case, Your Honor.</p>
<p>But moments again... is he... is he 5 yards, 10 yards, 15 yards away from the vehicle?</p>
<p>We... I think we need to go back to what Belton was all about.</p>
<p>Belton said that it concerns the proper... quoting at page 459 of the Belton opinion, it says the proper scope of a search of the interior of an automobile, incident to a lawful custodian... custodial arrest of its occupants.</p>
<p>And the Belton rule itself says, quote, at page 460, when a policeman has made a lawful arrest of the occupants of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.</p>
<p>Belton was focusing on that highly dangerous situation when a police officer initiates contact with and approaches a... an occupied vehicle.</p>
<p>As this Court recognized in Pennsylvania v. Mimms, that may be the most highly dangerous situation an officer faces.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But there was no search until the... Belton was... wasn't he in... in the patrol car by the time they started the search?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: So was Mr. Thornton, Your Honor, and I...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But... so I... that's what I don't... it's quite different from search into... incident to arrest.</p>
<p>The... the area around the defendant, the defendant may still grab a gun.</p>
<p>But the one thing we know is that when the defendant... when the suspect is sitting in the patrol car with handcuffs on, there isn't any danger that the police faces when they're doing the search.</p>
<p>When they arrested him, yes, but not when they search... do the search.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I would agree with that 100 percent, Your Honor, but the converse of that position is that in order to do the search, the... that he's allowed to do under the Fourth Amendment, that... that right to search fixes at the moment he effects the custodial arrest.</p>
<p>You don't want to... or it's not reasonable to require the officer to conduct that search with the suspect at his elbow.</p>
<p>So while I would agree with Your Honor as a... as a very practical matter, there is no danger to the officer in the situation where the man is arrested, stuffed in the back of the squad car, and then we go search, that's kind of a fiction.</p>
<p>But on the other hand, it may be a kind of a reasonable fiction because otherwise, the converse is, if the officer is going to search the car, he's got to do it with Mr. Thornton or Mr. Belton standing right beside him.</p>
<p>And that's why...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So you don't object to the search taking place when there's no danger to the officer, but you say in order to do that non-dangerous search, the officer has to put himself in danger when he makes the arrest.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: That's... that's right.</p>
<p>I... and I... and I believe, Your Honor, that's why... this case is really presenting a situation where we're dealing with the harm to the Fourth Amendment instead of really dealing with potential danger to the officer.</p>
<p>Modern police practices are going to have a Mr. Belton or a Mr. Thornton in the back of the squad car at the time these searches incident to the arrest under Belton or whether you're operating...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Was there... were there reasonable grounds here, do you concede that, for the Terry pat-down of petitioner?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Your Honor, there may or may not...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is that contested?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: The... that ground, that exception to the warrant requirement was not advanced by the Government below.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: All right.</p>
<p>I mean, there was a Terry stop.</p>
<p>There was a pat-down.</p>
<p>Narcotics were found.</p>
<p>He was arrested.</p>
<p>Right?</p>
<p>Subsequently the search.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: That's correct.</p>
<p>We...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Of the vehicle.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: We have not...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Now, had... had the officer not made an immediate search of the vehicle, presumably the police would have to have taken precautions to safeguard the car and make an inventory search of it.</p>
<p>So they're going to find the stuff anyway, aren't they?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, Your Honor, the... the Fourth Circuit did not address...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Isn't that right?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, not necessarily, Your Honor.</p>
<p>We're not conceding that particularly in this case.</p>
<p>We're not saying that there... this case involves a car that was parked in a... in a shopping mall parking lot.</p>
<p>And the only motor vehicle violation didn't authorize a towing of the vehicle.</p>
<p>So that the... the... there is an inadequate record below with regard to whether or not there would have been an inevitable towing and inventory of this car.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, it seems to me that Justice O'Connor's questions are... are getting to your comment that Belton is a... is a fiction.</p>
<p>And maybe it's not a fiction.</p>
<p>Maybe the officer, at the time he conducts the search, is not in immediate danger, but if he left the vehicle without conducting the search, a confederate can come by.</p>
<p>There could be somebody with another key.</p>
<p>A passer-by can come and get the gun if the car isn't locked, and there's going to be an inventory search anywhere... anyway.</p>
<p>So Belton, rather than being a fiction, makes a good deal of sense in terms of safety, maybe not safety at the time the officer is making the very search.</p>
<p>Maybe that's somewhat fictional.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: You could make the same argument with regard to the house in Chimel, that we limit the search to the area within reaching distance in the room that the man is in.</p>
<p>We don't let him go into the kitchen or the bedroom.</p>
<p>But there could be accomplices there.</p>
<p>There could be guns there.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Houses are... houses are stationary and cars are not.</p>
<p>So we have to draw the line there.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, it... the... if the... the justification in Belton for allowing the vehicle search says it's not a departure from Chimel, and it limits the search to an area within the reaching distance.</p>
<p>It's based on a generalization, Your Honor, that everything within the narrow passenger compartment of the vehicle is within reach of an occupant.</p>
<p>Now, when a man is no longer an occupant and has become a pedestrian and is walking on the street, that generalization that he can reach everything in the narrow passenger compartment of an automobile no longer makes any sense.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, then... then Belton should have been... if you're right, Belton should have... not have been decided the way it was.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Your Honor, Belton was decided absolutely correctly I believe.</p>
<p>The... the... Roger Belton was approached by the officer while he was an occupant of the vehicle.</p>
<p>The officer asked him to step out of the car.</p>
<p>I do not believe that we want to have our search incident to arrest doctrine turn on whether the officer decides to have him step out before he places him under arrest or arrest him, sit him in the... sitting in the vehicle.</p>
<p>Five other...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, suppose this... this officer lets Mr. Thornton go to the shopping mall but is standing guard next to the car and Mr. Thornton then comes back, enters the car and just as he enters, the police officer says, you're arrested.</p>
<p>Then he could do...</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: In my view he would not be able to do a Belton search.</p>
<p>He would be able to a Chimel search.</p>
<p>He'd be able to arrest the individual under Chimel, which is still the... the law in this Court, and he would be able to conduct a search of anything within Mr. Thornton's reaching distance at the time.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So if...</p>
<p>So if the car were... the car door were unlocked and his reach would have been long enough to get inside the... the car if the door were open, he could search into the car?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: If... if the... if the car was... if he could... he could search for anything within reaching distance of the person he's arresting.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What about the answer to my question?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: If he could reach into the car, he could... he could get anything within the man's reach.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why is that reasonable?</p>
<p>Why doesn't he tell him, look it, move off, get... get 10 yards away from the car, get 20 yards away, however?</p>
<p>I... I mean, you... you don't really suggest that there is a necessity to conduct a Belton search in order to protect the officer.</p>
<p>All he has to do is say, get away from the car.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, I... I agree with Your Honor that if he hasn't arrested the man and he has an opportunity to let the man move away from the car before he conducts the arrest, he's certainly acting as a prudent officer in protecting his own safety.</p>
<p>I would agree with that.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: It seems to me...</p>
<p>Belton must then rest on some kind of bright line administrative consideration because you're attacking Belton in various ways which are logical.</p>
<p>But our problem I think in this case is to decide whether the particular limit that you propose makes sense, and that's where I'm having a problem because what you say is that the... the line to be drawn around Belton is not just a line of... in time and space, which I could understand.</p>
<p>But you want to say it depends on whether the policeman initiated conduct with the individual before he exited the car.</p>
<p>And that seems to me that you're trying to distinguish between the case where the policeman notices a wanted suspect driving, pulls over to the side.</p>
<p>The police... the... the suspect takes off and runs over to a fence.</p>
<p>Now, that would be okay.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: That's Belton.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But the car stops before the policeman recognizes him.</p>
<p>The driver gets out and then the policeman recognizes him, and then he takes off for the fence and it's exactly the same.</p>
<p>That you would say is not Belton.</p>
<p>Now... now, that line that you're drawing there to me... I... I don't understand it at all in terms of the Belton rationale or administrative.</p>
<p>It would make it more complicated and it wouldn't achieve that much.</p>
<p>It seems... in other words, I want you to explain why that line is a rational way of limiting Belton.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I would suggest, Your Honor, that the man who exits the vehicle and runs to the fence, 15, 20, 30 yards from the vehicle, whether he did it because the police pulled up behind him and turned the flashers on or whether the policeman surprised him as he was coming out of the car, neither one of those searches are good under Belton because the man... it's... it's no longer appropriate in my judgment to rely...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's not what the question presented says.</p>
<p>It says, when the arrestee was not in the car when the police initiated contact with him.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I understand.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So what I thought you were advocating is if the policeman was not in the car when the police initiated contact with him, unless he's within reaching distance, which he isn't... if he's not in the car when the police initiated contact with him, then don't apply Belton.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: That's... that's correct, Your Honor.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And that was the line that I was having trouble figuring out a justification for.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: That... that's correct, Your Honor, and if I might respond.</p>
<p>The... our... our test under Belton has two prongs to it.</p>
<p>One is that he's in the car when the police initiate contact with him.</p>
<p>The second is that he's arrested within reaching distance of the car.</p>
<p>So your hypothetical that the man runs to the fence...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You're saying that Belton never applies as within reaching... if he's outside reaching distance of the car.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: If he's... if he's outside reaching distance, it doesn't make any sense...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's... that's one possible rule.</p>
<p>That would... that would invalidate what is ordinary police practice in almost every place, which is that they remove him, he's outside the police... I take it it would.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, it's the moment...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Can the policeman make him stay within reaching distance?</p>
<p>Wait.</p>
<p>Don't... don't get any further than that.</p>
<p>I want you to stay right there.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: The policeman can arrest him and take control of him.</p>
<p>So I would argue yes, he can make him stay within reaching distance.</p>
<p>The... the justification for the Belton search is to protect the officer.</p>
<p>It's not reasonable to think that he's going to effect his arrest at a point that increases the danger to himself just so that he can make a search.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Okay.</p>
<p>I mean, I understand the argument, and it's been made many times and there's a lot of logic to it.</p>
<p>But it's been pretty consistently rejected.</p>
<p>So... but I got it.</p>
<p>At least I understand it and... and maybe it will be accepted or not.</p>
<p>But let's put that one aside, the reaching distance point.</p>
<p>Do you want to defend the other distinction your making, which I take it is even if you lose on reaching distance, still Belton does not apply if the initial contact was made between the police and the... and the suspect outside the car?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: We... that is...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You want to give up on that one.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: No.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Or you want to defend it?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: No, no.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Then defend it.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Our... the initiation of contact we believe is a... is a very reasonable test, and we believe it's called for by the Belton case itself.</p>
<p>When you read... when you read Belton, it says it is a narrow... narrow... class of problematic recurring cases, and then it gives seven cases as examples of cases that fall within its class.</p>
<p>And in every single one of those cases, with the possible... a marginal exception of one, the police are initiating contact with the man while he is an occupant of a vehicle.</p>
<p>We...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And that escalates the danger of the situation.</p>
<p>I mean, why... what sensible regime would say, police officer, don't take the precaution of waiting to make the arrest till the person stops and gets out of the car?</p>
<p>That way, police officer, you won't be in danger of the man grasping for a gun.</p>
<p>Or suppose it's a case where the police want to follow that car and not signal because they want to find out where the crack house is that he's going to.</p>
<p>So if they signal, they make initial contact, they give away the whole... the whole thing.</p>
<p>They will not find the destination they're looking for.</p>
<p>To... to say that Belton is okay but... in those situations the... the police would not have the possibility of within moments after the suspect exits the car arresting him and then doing a car search.</p>
<p>It just doesn't seem to make any sense.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, Your Honor, if you... if you think about it, that most... the most dangerous situation for the police officer is when he initiates contact with the person while he's an... an occupant in an... of an automobile, but has not yet gotten up to the point where he can get him out and make an arrest.</p>
<p>It's during that interval between the time that the officer initiates contact with the vehicle and the time when he actually makes a custodial arrest that the danger to the officer is at its greatest point.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, that's what... why I asked doesn't it make sense to say we're not going to initiate contact while he's in the vehicle, but the minute he gets out, we will arrest him.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Because in most cases, Your Honor, the officer doesn't have a choice.</p>
<p>You look at the case in New York v. Belton, I mean, he... the officer was a... was a State trooper pulling the man over on the highway.</p>
<p>The... when... when you... and that's going to be the case most of the time.</p>
<p>You're going to have a... a State trooper or somebody with lights on top of their car that are pulling somebody over, and they don't really have a choice.</p>
<p>Or you've got undercover agents watching for the drug transaction to occur and then before the dealers drive off, they want to rush the car and make the arrest of the occupants.</p>
<p>It... the... the officer frequently has no choice.</p>
<p>And I like to think of it as when you turn on the light to pull the man over, you turn on Belton.</p>
<p>Belton comes on when you turn on the red light to signal the man over.</p>
<p>And what does it do for the officer?</p>
<p>It immediately defines, for purposes of a bright line rule, who is an occupant.</p>
<p>It not only defines who is an occupant, it defines who can become a recent occupant.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Why... why don't we save ourselves a lot of trouble and say that in almost all of these cases, the police have an interest in what happens to the vehicle, they're going to take it away anyway, so they might as well do the inventory search right away?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, the... the Court has come close to entirely extinguishing any Fourth Amendment protection in a vehicle, and that kind of a decision would give it the final death knell.</p>
<p>There would be no privacy left.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But, I mean, does it make a lot of sense if in most cases, which I... which I assume to be so... I may be wrong.</p>
<p>In most cases, especially when the car is on a... on a street or in... in a... in a parking lot... it's not at the residence... they're going to have to tow that car and... and check it.</p>
<p>They probably should make sure it's locked before they leave so that nothing will be taken from the car, et cetera.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: What you end up with, Your Honor, is when you combine that view with the Court's decisions in Atwater and Wren, you end up with the police stopping somebody in... in a parking lot, maybe a short distance away in a store because they've got a dead inspection sticker.</p>
<p>But it's a pretext because the officer wants to search the car.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, no, my case... my case says there's been an arrest.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, but the... the Court's decisions allow the arrest to be made on a minor traffic violation that doesn't carry anything more than a $200 fine on a pretext because the officer wants to search the car.</p>
<p>He then... he makes the arrest on the... on that under... under Wren and Atwater.</p>
<p>He then has the right to go search the entire vehicle.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, my point... my point is I assume it happens anyway.</p>
<p>Now, empirically I may be wrong.</p>
<p>Then that's a different case.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, it is clear, is it not... I... if I remember Belton, it is clear that the Belton rule applies to any arrest.</p>
<p>It does not necessarily have to be an arrest in which they will impound the car.</p>
<p>You could be caught for speeding.</p>
<p>That's what they stopped him for in Belton.</p>
<p>They were speeding.</p>
<p>And so I think Justice Kennedy's hypothetical is not the facts of Belton.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: The... the fact is that... that Belton is an arrest.</p>
<p>It doesn't require a towing or inventorying of the car.</p>
<p>It is a... a classic search incident to arrest.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And it not only allows search of the vehicle but of every container in the vehicle.</p>
<p>So everybody who's caught speeding has his vehicle... everything in that vehicle is subject to search.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: If they're... if they are arrested, Justice Stevens.</p>
<p>Many times...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Correct.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: people are just issued a citation.</p>
<p>But if they're... if they're stopped, even for a bad traffic signal or not wearing a seat belt, they can be subjected to a custodial arrest and have their entire vehicle searched.</p>
<p>And I think that's why it's... in drawing the lines here with respect to Belton, recognizing that the... that the arrestee is usually in the back of the squad car, and we're not here talking about officer safety issues... that we try to remain... retain some semblance of the Fourth Amendment with regard to automobiles.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The arrestee here, though, wasn't... wasn't in the back of the car, the back of the police car.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Mr. Thornton was placed in the back of the police car before the search occurred, Your Honor.</p>
<p>He was arrested...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Oh, after... after he was arrested you mean.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Arrested, but before the search, Your Honor.</p>
<p>And that's Justice Ginsburg's point.</p>
<p>Where is the danger to the officer when the arrestee is in the back of the squad car?</p>
<p>And that is a fiction and it is a fiction that courts accept, that if the squad car drives off with the man and takes him back to the station house, then the right to search is gone, but as long as it's a contemporaneous part of an unfolding scene...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Who... who...</p>
<p>Unless the police have a practice of trying to safeguard the vehicle since it... it could be claimed later by the person arrested, I had the Hope diamond in the back seat and you people hauled me off to jail, now you pay me for the Hope diamond.</p>
<p>So, obviously, they want to inventory it.</p>
<p>And I suppose virtually every police department has regular provisions to safeguard vehicles in those circumstances and do inventory searches.</p>
<p>Don't they?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I... I assume most good police departments do, but in this...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: So I don't see how we're furthered in our concerns by your approach.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, in this particular case, Your Honor, those inventory concerns were... were not addressed in... in the factual record.</p>
<p>We believe we would win on the issue of inevitable discovery.</p>
<p>The Fourth Circuit didn't address it.</p>
<p>And moreover, you... frequently you're going to have an occupant arrested but that doesn't mean the vehicle is going to get towed.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Why... why instead of complicating it... take Belton as a given.</p>
<p>Sorry.</p>
<p>Were you finished?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I... I was just going to finish, Your Honor, by saying that the... that... that you might just arrest one occupant and you might let the other occupants go on.</p>
<p>So you can't necessarily say that the vehicle is always going to be towed and is always going to be inventoried.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I mean, would it... do you think it would work... or why wouldn't work... to try to control Belton by imposing limits on what's reasonable time and reasonable space so that you keep it really to a... an arrest that took place really when he was just within the car and not too far away unless it's his fault because he took off?</p>
<p>All right.</p>
<p>Now, you'd do that through a common law approach.</p>
<p>The lower courts would make their decisions and occasionally we could review one to say it went too far one way or the other.</p>
<p>That, it seems, is a... is a procedure for imposing limits on Belton that... that might work.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why wouldn't it?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, Your Honor, as long as they're... they're more definite than words like recent or close proximity...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, no.</p>
<p>You'd have to... you can't get... unfortunately, language is what it is, and... and sometimes efforts to make it clearer make matters worse.</p>
<p>So one way to control, in the presence of vague language, is through example.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: And I... that's what I thought the Court did in Belton was give examples.</p>
<p>And if you follow the examples that were given in Belton, you don't approve the search that occurred with regard to Mr. Thornton, because if you're trying to draw a bright line, which is what you were trying to do in Belton, you have... some things fall on one side of that line and some things fall on the other.</p>
<p>And we would... we would submit that once a person, on his own without any prompting from the police, becomes a pedestrian, he's no longer an occupant of a vehicle.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: How long after he got out of the car did the arrest take place?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Moments.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What are moments?</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Well, the... it seems like the entire time I've been standing here is moments because my life is going in front of my eyes.</p>
<p>[Laughter]</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: All right, and how far...</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: But in... in any event, we would argue that the... that the search here was outside of Belton and we would also argue that you have a perfectly good 35-year-old precedent in Chimel.</p>
<p>If Belton doesn't apply and you're on the other side of the Belton line, then you go to Chimel, and Chimel tells you what to do.</p>
<p>Chimel wasn't limited to houses.</p>
<p>It is the rule that the police use every single day when they effect a custodial arrest.</p>
<p>No new rules.</p>
<p>No new guidance.</p>
<p>Just if Belton doesn't apply, go to Chimel.</p>
<p>I'd like to save the rest of my time for rebuttal please.</p>
<p>Argument of Gregory G. Garre</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. Dunham.</p>
<p>Mr. Garre, we'll hear from you.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Thank you, Mr. Chief Justice, and may it please the Court:</p>
<p>The sole contention advanced by petitioner on appeal was that the search of his car was not lawful under the rule of New York v. Belton because Officer Nichols did not succeed in initiating contact with him while he was still inside his car.</p>
<p>The court of appeals correctly rejected that contention.</p>
<p>To begin with, petitioner's initiation of contact rule has no foundation in the rationale of Belton.</p>
<p>It is the fact of the arrest and not the reason that the person exited the car that gives rise to the justification for the Belton search.</p>
<p>The custodial arrest is an extremely dangerous and volatile encounter for the officer in the field, and that's particularly true in the case of the arrest of a recent occupant of a vehicle.</p>
<p>In Belton, this Court drew the generalization that when the recent occupant of a vehicle is arrested, that the inside of the vehicle is always within the area in which that occupant might try to... try to lunge in order to get a weapon to effect his escape or to grab evidence to conceal it or destroy it in the car.</p>
<p>Now, the application of that generalization...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I just point out that the question presented in Belton defined it as an occupant of the vehicle?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That's correct, Justice Stevens, but the Court did use the term recent occupant at page 460 of its decision.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It also used occupant several times in the opinion.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That's true, and... and in describing the category of...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And... and the examples that it gave, as your opponent indicated, all were... except one possible exception, all were occupants, weren't they, in... in the cases that Justice Stewart...</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: No, Justice Stevens.</p>
<p>I... I actually don't think that that's correct.</p>
<p>I think the Frick case, which is discussed, listed with the cases discussed at page 459 of the decision, involved the situation where the police came upon the person in a parking lot, and in that situation... which was one of the cases that the Court identified as the disarray in the case law that existed before Belton.</p>
<p>And that's a critical point for the Court to understand in weighing the... the petitioner's reaching distance argument here.</p>
<p>This Court knows what the world is like in a reaching distance regime under Chimel and the important context in which the recent occupant of a car is arrested.</p>
<p>As the Court mentioned in... in Belton, it's a world in which there's disarray and confusion in the case law, more litigation and more confusion for the officer in the field.</p>
<p>The Court noted on page 460 of its decision in Belton that that kind of confusion was not helpful to the police who need clear rules for the scope of their authority in this context.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but if you emphasize the clarity... and that's what Justice Stewart did.</p>
<p>He drafted what he thought was a very clear rule.</p>
<p>If you limit it to occupants, isn't that equally clear as the rule you propose?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: It's... it's artificial, Justice Stevens, and it's...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, I agree it's artificial, but is it not equally clear?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That is a clear...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: In fact, is it not more clear?</p>
<p>Because I don't know when you stop being a recent occupant.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, with respect, we think it's an artificial rule, and... and if I could...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It is an artificial rule.</p>
<p>We all agree with that, but what we're... what we're looking for is a clear artificial rule.</p>
<p>That's the purpose of Belton.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: No.</p>
<p>I... I think a rule which... which takes into account the justifications...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Because the reason it's artificial is it explains that normally Chimel would control, and he said we want a special rule for... for arrests of occupants of cars.</p>
<p>And that's what they did.</p>
<p>And we... and they made it so you can search the entire vehicle.</p>
<p>That's the other important part of Belton.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: But... but it...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And the entire... all... all containers in the vehicle I mean.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: If I could respond in this way.</p>
<p>First, the vast majority of arrests that take place in the Belton context, including in this case, including in Belton itself, take place after the person is already outside of the car.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but the contact with the police is when they're occupants.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, that's true.</p>
<p>And... and let me talk, if I could, about the artificiality of that rule and why we think it's not a rule that the Court should adopt.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, I'm trying to get an answer to this question.</p>
<p>I agree it's artificial.</p>
<p>It's described in Belton as artificial.</p>
<p>But the search in Belton was for the clearest rule available, and my suggestion to you is the rule of Belton, as... as described in Belton itself applying to occupants of the cars at the time of contact, is clearer than a rule defined by recent occupant because what is a recent occupant.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, let me answer both questions.</p>
<p>I... I don't think that that is going to be a clearer rule than the rule that we're asking for in this case.</p>
<p>And... and to respond to your second question as to what is a recent occupant, in our view it's someone who's just occupied the car.</p>
<p>It's... it's the person in the vast majority of cases in which this question has arisen.</p>
<p>In this case it was clear that Officer Nichols met petitioner moments after he exited the car, and that's going to be the situation in which this question has arisen and it can arise in a number of ways.</p>
<p>In Michigan v. Long, the police...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But would your rule apply to someone who was out of the car for 5 minutes?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, the... the recency test that the Court... that we think the adopted or described in Belton is one that's tethered to the proximity of the automobile.</p>
<p>And there are going to be line-drawing problems at the outer...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, I'm trying to understand what your definition of recent is.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: It's... it's someone... it's the person who has gotten out of the car and who's in the same proximity to the car that he would have occupied if he had been ordered out.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But is... in other words, geography is part of the time dimension of recency.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, and it is in a typical Belton case.</p>
<p>If I could give the Court an example.</p>
<p>The Federal Law Enforcement Training Center trains its officers that they should stop their police car within two to four lengths of the vehicle that they're stopping and to pull the person out of the car prior to the arrest.</p>
<p>And this is... this is the way officers are trained to bring them back because of the inordinate risks that officers face in that situation.</p>
<p>In this case, Officer Nichols intended to pull petitioner over.</p>
<p>That's at page 16 of the J.A., but he didn't succeed in doing so because the petitioner pulled into a parking lot.</p>
<p>And that's not an uncommon practice that... that suspects do if they... if they feel or sense that they're under surveillance by the police.</p>
<p>And he got out of his car, and the record shows at page 11 of the J.A. that Officer Nichols got out at the same time and met him within moments.</p>
<p>This is... this case we think has the hallmarks of the classic Belton encounter.</p>
<p>Officer Nichols patted him down, found drugs on his person, and at that moment, placed him under arrest.</p>
<p>The... the pat-down was a consensual search.</p>
<p>That's... that's indicated at page 19 of the joint appendix, and at the moment that he placed petitioner under arrest who, after all, was a convicted felon who just had drugs on his person and who had a loaded semi-automatic gun...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why... why does that matter?</p>
<p>We don't know that.</p>
<p>The police don't know that.</p>
<p>That doesn't figure into any calculus.</p>
<p>Most people who get out of cars are not convicted felons bearing drugs.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That's absolutely correct, Justice Souter, and that's an important aspect of the generalization that the Court drew in Belton and... and that underlies the search incident to arrest cases which is...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but the... the point of Justice Stevens' question is why should we go beyond... strictly why should we go beyond the generalization in Belton?</p>
<p>And the reason certainly cannot be that this particular guy had a record and had drugs.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: My... my point, Justice Souter, was that the officer safety justification for Belton is going to be squarely implicated regardless of the reason that the person got... got out of the car.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but it seems to me that you get into... into deeper water if you say that because the... to me the incoherence of Belton is that it... it purports to be an application of Chimel with a bright line, but at the point at which the actual search is made, any danger to the officer is over.</p>
<p>And so if... if you're going to try to justify a... a more flexible approach to Belton on grounds of the safety justification in Belton, I... I think you're... you're out over your head.</p>
<p>And... and the force of Justice Stevens' question to me is this.</p>
<p>Belton is not coherent with Chimel.</p>
<p>Belton does not stand up as an analysis of anything other than we're going to have a simple bright line rule for cars and stop all of this litigation.</p>
<p>But if Belton gave a bright line rule for cars, why is there a justification for making it less bright by going beyond the specific kinds of facts in Belton itself?</p>
<p>That's the force of the question.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Sure.</p>
<p>And... and we don't think it's going to be any less bright in the most common situation in which this question has arisen where police come upon the person right as he's... as he's exiting his car.</p>
<p>Michigan v. Long is another example.</p>
<p>That case was decided two terms after Belton.</p>
<p>And in that case this Court indicated in dictum that Belton would apply in the situation where the police come upon the person after he's outside of the car.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But is... is your criterion then going to be a time criterion, the recency of his exit from the car?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: It's... it's going to have both... and the court of appeals emphasized it in this case at page...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, is it time or is it space?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: It's both space and time and it's going to encompass a situation where the person has just gotten out of the car...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So if... if I get out of my car and I run as fast as I can run for 15 seconds, and I get across the parking lot, that is very recent in time.</p>
<p>Can... can you search my car then?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, under the position that petitioner advances...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I want your position.</p>
<p>We want a bright line rule.</p>
<p>If... if I... if I'm a sprinter and I get across the parking lot and it's 15 seconds, can they search the car?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Justice Souter, as in the case of any Fourth Amendment case, there... there are going to be situations at the margin.</p>
<p>I think if... if the person is racing away from the...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but bright line rules are... are there to... to avoid marginal problems.</p>
<p>What... what's the answer to my... my question?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: If the hypothetical is the person sees the police officer and races away from the car, the police officer arrests the person in the vicinity of the car, then no, I don't think it matters if he got 15 feet or 20 feet or 30 feet.</p>
<p>If he gets a block away, then sure, it might matter.</p>
<p>These are cases at the outer extreme or margin and aren't implicated by the commonly recurring fact pattern in which this case arises where the police meet the person in the same spot that he would have been if he had been ordered out of the car.</p>
<p>And... and let me talk about the problems with line-drawing that the Court is going...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What if he... what if he didn't see the police officer?</p>
<p>He drives into the parking lot, gets out of his car, locks the car.</p>
<p>He's 5 feet away and... and the police say, that's the guy I saw speeding on Main Street 10 minutes ago.</p>
<p>What's... what's the answer there?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: He's... he is in the spot he would have been if the police had arrested him or had apprehended him in the car and told him to get out.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Can they search?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Of course, there's something absent there which is the positive linkage.</p>
<p>The police don't know that that person has just gotten out of the car.</p>
<p>That... that case is a lot like the Frick case that the Court noted in Belton as one of the cases that it was trying to deal with when it came up.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But if they see him... if...</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: I think the police...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: if they see him get out of the car, can they then search in my hypo?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: I... I think in that situation where the person was arrested right by the car, we think that Belton probably would apply.</p>
<p>But that's not the fact pattern initiated here.</p>
<p>If... if I could just talk about the line-drawing problems that the Court is going to invite if it adopts petitioner's initiation of contact rule.</p>
<p>The... the petitioner said today that... that the rule the Court ought to adopt if the light is on, then Belton is... is on.</p>
<p>Well... well, that's going to create line-drawing problems.</p>
<p>To take an example close to home, the... the police officers in the District of Columbia often drive around with white flashing lights on.</p>
<p>Now, I'm not sure how the existence of those white flashing lights would come into play under petitioner's initiation of contact rule.</p>
<p>Take the case that the Court had before it this fall, Arizona v. Gant, which was a case that presented the same issue, but the Court vacated and remanded it in light of the Arizona Supreme Court's decision which rejected the initiation of contact rule.</p>
<p>In that case, the officer came upon the suspect and he shined a flight... shined a flashlight into the car which the suspect was still inside the car.</p>
<p>The suspect got out of the car.</p>
<p>The officer met him moments later, and yet the court of appeals in that case said that the police officer hadn't sufficiently initiated contact with the suspect while he was still in the car.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The Arizona Court of Appeal.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: The Arizona Court of Appeals held in that case.</p>
<p>That's correct, Mr. Chief Justice.</p>
<p>And... and in describing that, the Court listed the number of different factors that would have to go into the calculus both from the standpoint of the officer on the scene and from a court later reviewing that determination as to whether the officer initiated contact.</p>
<p>He'd have to take into account the lighting in the situation, how far the officer was the car when he... away from the car when he shined the flashlight into it, whether the person saw the flashlight, whether the person thought it was a police officer shining the flashlight or someone else, whether the person was aware that there was a police...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, you said a little while ago there are cases on the fringe.</p>
<p>Of course, you can always find one or two cases that present these difficult problems.</p>
<p>But are... are you really contending that the rule of initiating contact is less bright than the rule you're proposing?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Yes, we are.</p>
<p>If... if the Court focuses...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What if, for example, the... the officer saw a person speeding, he pulls into a gas station, he gets out, goes to the men's room and comes back out.</p>
<p>Can he be... can you search his car?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: If... of course, that's... that's not the fact pattern here.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: No.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I'm just not... I'm just wondering...</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Yes, I think he probably would be able...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I'm wondering about the integrity of your statement that there's a real bright line rule there.</p>
<p>And what do you do with my case?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: In... in that case where the person...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: He's... this... the officer saw him speeding but he didn't turn the light on.</p>
<p>He followed him.</p>
<p>The guy goes into a gas station, goes to the men's room, comes out 2 minutes later.</p>
<p>Can you search his car?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: If the person comes out and is right next to the car in the place he would have been when he had been ordered out, yes, we think that... that Belton would apply in that situation.</p>
<p>But... but the rule that we're asking the Court to adopt here is that on this fact pattern, which as the court of appeals we think correctly recognized has temporal and spatial limits, where the police see the person exit the car, confront him moments later, the application of the bright line rule in Belton shouldn't depend on the fortuity of whether the police initiate contact with that person beforehand.</p>
<p>And that's particularly true in a case like this where Officer Nichols intended to pull the car over and... and yet didn't do so because the suspect did what suspects sometimes do, which is to pull over and get out in order to try to blend in.</p>
<p>The... now, going back to the officer safety rationale, we think that is a justification for Belton and that it is implicated in this situation and that the initiation of contact rule would implicate officer safety in a number of ways.</p>
<p>One is the surveillance situation that was mentioned during petitioner's argument and that the court of appeals mentioned in this case.</p>
<p>In... in some cases, officers are engaged in surveillance activities and maybe determine that it's undesirable and unsafe to make contact with a suspect while he's still inside the car and so take the prudent step of waiting for the suspect to step out of the car before confronting him.</p>
<p>The... the case out of Virginia, the Glasco case that's discussed in the brief, is an example of that.</p>
<p>There's... there's also the... the possibility, which is recognized in the case law, that an initiation of the contact rule would have the effect of increasing the volatility of Belton encounters by creating a dynamic in which suspects had an incentive to race out of the car before police could... could initiate contact.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If the... if the suspect is handcuffed and is in the police cruiser, is there any danger to the officer at that point that can't be equally avoided by simply having an inventory search later?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: There is danger, Justice Kennedy.</p>
<p>I mean, first of all, on... on the handcuff...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Assume a single occupant.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Right.</p>
<p>There is danger.</p>
<p>And we... we... and it's true in... in a stop and arrest like this case where there's a lone officer and a person who he arrests.</p>
<p>And the... the deeply ingrained practice in this country is for the officer to put the... the suspect, arrestee, in the squad car and then go back and search the car.</p>
<p>And... and we cite cases on page 38 of our brief where... where suspects have escaped from handcuffs and gotten out.</p>
<p>And... and that danger is remote, but we think that it's still real as long as the suspect is at the scene of the arrest.</p>
<p>All of the courts of appeals that we're aware that... that have considered this question and Professor LaFave who's... who's recognized that have concluded that Belton applies when the person is handcuffed in the back seat of the squad car.</p>
<p>And of course, Justice Brennan in his dissent in Belton recognized...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I know it applies, but it's just not clear to me why an inventory search can never be, which... I have only one factual question here.</p>
<p>Was this car locked before the police officer searched it?</p>
<p>Did he need the key or do... do we know?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: The... I believe the answer to that is... is no because the record doesn't... what the record shows... and this is on page 50 of the J.A. I think... is that the officer arrested petitioner, put him in the car and then went back and searched the car.</p>
<p>There's nothing in the record that suggests that the officer needed keys.</p>
<p>But... but on the inventory search question, although it may be true in some cases that the inventory search inevitably would have led to the discovery of the contraband, in that sense the privacy interests of the person from a Belton search at the time are... are further diminished.</p>
<p>The inventory search I don't think is an answer to the officer's safety concerns and justification for Belton, which are real as long as the person is still at the scene of the arrest.</p>
<p>There is the remote risk that the person can escape and try to get back into the car.</p>
<p>There's also the risk, as... as you mentioned I think, that there could be confederates in the area who might try to get into the car, either for a weapon or to get drugs out of the car or other contraband out of the car.</p>
<p>Officers in... in the Belton stop, it's not uncommon for them to... to have the person out of the car, to secure him, and then it's only at that point that they... that they feel safe to go back to make sure that there's no one else in the car who could be hidden in the car or other things in the car.</p>
<p>So I... so we don't think that the inventory search is an answer to the very real concerns that the officers face in conducting the Belton search and that provide the rationale for the Belton search.</p>
<p>I wanted to just go back briefly to the Court's decision in Michigan v. Long.</p>
<p>And although it is dictum in that case on the application of... of Belton, we do think that it's... it's persuasive dictum.</p>
<p>In that case the police officers saw a car swerve off the road, and they... they came around back to investigate.</p>
<p>The petitioner... or... or the suspect in that case, the individual who was driving the car, was already outside of the car when the police came back.</p>
<p>And... and the Court in that case made quite clear in dictum that if the... if the suspect in that case had been arrested, that the search of his car would have been perfectly lawful under Belton.</p>
<p>And we think that that was... that is a persuasive and a correct understanding of Belton.</p>
<p>If I could... I wanted to make clear too that we think that this case does bear the... the hallmarks of a classic Belton encounter.</p>
<p>The only difference is... is that Officer Nichols did not succeed in initiating contact before the suspect got... got out the car, but Officer...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Would he have to at least see the suspect in the car or would it be all right under the rule you're proposing where the police that come upon the scene just after the suspect exits from the car?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, we think that the... the most important thing for the Court to hold in this case... that we would ask the Court to hold in this case is in the commonly recurring situation where police see the person exit the car and confront him moments later in the same vicinity that he might have occupied if he had been ordered out of the car, that it doesn't make a difference for the purposes of applying Belton as to whether or not the police succeeded in initiating contact or succeeded in initiating contact in a sufficient way.</p>
<p>There may be... there are going to be other cases that arise, and... and we don't think that this is an area in which the Court should try to establish a rule which is tethered to a particular distance or... or a particular amount of time.</p>
<p>These are... this is an extremely dangerous encounter for police.</p>
<p>This is an area in which police need to make judgments.</p>
<p>This Court recognized in the Lagovista case...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It seems to me your argument is that we don't want a bright line rule.</p>
<p>We want a... a facts and circumstances rule and take everything into account, which is sort of... Justice Scalia often speaks of those rules with some disparaging terms.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: No.</p>
<p>That... that's not what we're asking for, and I'm sorry if I... if I misled the Court.</p>
<p>We're asking the Court to apply the generalization that it adopted in Belton.</p>
<p>The... the reaching distance rule that petitioner has alternatively asked for would just eviscerate Belton and put courts and police officers back in the situation that they occupied before Belton in trying to apply Chimel in... in the recurring and dangerous context of an automobile stop.</p>
<p>The Court recognized in Belton on page 59 of its decision that that... the Chimel analysis had... had provided to be... shown to be unworkable in this context and... and had created litigation for the courts and uncertainty for the police officers.</p>
<p>So we're asking the Court to... to stick to that bright line.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Justice Stewart wrote both Chimel and Belton, did he not?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That's absolutely correct, Mr. Chief Justice.</p>
<p>On the handcuffing in the squad car, I... I did want to make clear on that point that that argument was not raised by petitioner below, and... and the court of appeals noted that at page 74, note 2 of the joint appendix.</p>
<p>It's not pressed by petitioner in this Court.</p>
<p>I think petitioner's reply brief makes that clear on page 16.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What do the police departments normally tell the policemen?</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What do they say?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: They say, when you arrest a person who just got out of a car, you can search the car?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: In terms of... of... I... I can tell you what the practice is at the Federal Law Enforcement Training Center.</p>
<p>And... and that practice is you... is... is to take the... the person outside of the car, ordinarily away from the car back towards the police...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No.</p>
<p>I'm not... I'm not asking the practice.</p>
<p>I'm asking... the virtue of Belton is supposed to be it's simple.</p>
<p>Explain it to a policeman.</p>
<p>So I want to know how do they explain it.</p>
<p>I thought perhaps they explain it by saying, policeman, if you arrest a person who's just got out of a car, you can search the car.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That's... that's correct, Justice Breyer.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<p>Then if that's... then there has to be some kind of limit on just got out of.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: And... and if it's...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So... so inevitably we're in the business of trying to say what's just got out of.</p>
<p>Is it a minute?</p>
<p>Is it 2 minutes?</p>
<p>Is it 5 minutes?</p>
<p>There's no way to avoid that, is there?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: No.</p>
<p>There's not at the outer margins, but... but the Court...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<p>So what in your opinion is the outer margin?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, let me... let me say affirmatively that this case we think places a proper temporal...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: This is well within it.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: and spatial limits on it where it's clear that the person...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And you'd say certainly a day is too long I imagine.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Of course.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: That's correct.</p>
<p>I think if the Court were to hold in this case that Belton applies in this situation where the police confront the person just after he gets out of the car, that is going to provide a guidance to the police officers.</p>
<p>And that's going to tell them they don't need to undertake this additional fact-specific analysis as to whether the person got out of the car of their own volition or an initiation of contact.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Then perhaps we could use words like just got out of.</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Or within moments.</p>
<p>And... and I think...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Seconds?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Seconds would be fine.</p>
<p>But... but no.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And what about in this...</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: I don't...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: what about in this... this is a serious question.</p>
<p>What about if he's just about to get into it?</p>
<!-- gregory_g_garre--><p><b>Mr. Garre</b>: Well, and... and that's... that's a different fact pattern that has arisen.</p>
<p>We think Belton would apply in that situation, and police we think have reasonably concluded that and courts have reasonably concluded that.</p>
<p>But... but that's not the question here.</p>
<p>And the most important question for the Court to answer, which is the situation where the police do see the person get out of the car and do confront him moments later.</p>
<p>The... the States... a number of States have filed an amicus brief in this case supporting the Government's position and... and urging against adoption of an initiation of contact rule.</p>
<p>And... and we do think it's significant that each of the States and jurisdictions that have adopted the initiation of contact rule, States like Florida and... and Illinois and Michigan, have signed that brief and urged the Court to reject the initiation of contact rule.</p>
<p>We think that that rule is unworkable.</p>
<p>It's shown to be unworkable in cases like Gant v. Arizona.</p>
<p>There are other cases in which added wrinkles have been applied to the rule.</p>
<p>There's a Florida case, which is not discussed in the briefs, but it is publicly reported.</p>
<p>It's Kavallierakis v. State, 790 S. 2d 1201.</p>
<p>In that case, the courts in Florida, applying the initiation of contact rule, concluded that in order to trigger Belton, the contact had to be of a confrontational nature and not of a friendly nature, so that in that case, the courts reversed a conviction for possession of drugs found in a car because the police officer met the person with a greeting while he was getting out of the car as opposed to a confrontational signal such as a... as a siren or a light.</p>
<p>Now, that... that seems like an extreme application of that rule, but it's nevertheless indicative of... of the variations in the line-drawing that can arise and that have arisen.</p>
<p>In this case we think that the court of appeals properly held that Belton apply.</p>
<p>The record conclusively shows that petitioner was a recent occupant of the car and the search was contemporaneous with the... the arrest, and we would ask the Court to affirm the judgment of the court of appeals.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Thank you, Mr. Garre.</p>
<p>Rebuttal of Frank W. Dunham, Jr.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. Dunham, you have 4 minutes remaining.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I have four brief points, Your Honor, that I'd like to make, if I could.</p>
<p>The first is that the State court opinion in Michigan v. Long, People v.... People v. Long, shows that the car there was being chased by the police.</p>
<p>They just weren't observing him drive by at a high rate of speed and crash into a ditch.</p>
<p>They were in a high-speed chase, and it's reasonable to infer that they had their lights on and therefore had initiated contact.</p>
<p>Furthermore, the State court opinion in People v. Long shows that Long was in the vehicle when the officers got out of their car, after he had crashed into the ditch, and began to approach the vehicle.</p>
<p>Then Long exited his vehicle and walked towards the officers.</p>
<p>So I don't think it's... it's fair to say that there was no initiation of contact by the officers with Long in the Long case and that the footnote in the Long opinion referencing to Belton is no expansion or further brightening of the Belton rule.</p>
<p>Second, I want to point out that the Frick case, which is the one possible exception that I think Justice Stevens referred to when he was talking about the cases that Belton points to as defining its class... the man is either getting into or getting out of his vehicle.</p>
<p>He has not... he has not achieved the status of pedestrian.</p>
<p>Most people... I think you could still consider someone who was in the act of either getting in or getting out... you could call that person an occupant.</p>
<p>Third, if you... the Fourth Circuit did not adopt Mr. Garre's place where he would have occupied if he had been arrested test.</p>
<p>We call... that's the Government's might have test.</p>
<p>But Mr. Garre would add that to what the Fourth Circuit rule and would have him... and... and would add a limit that, oh, as long as he's arrested where he might have been if he might have been arrested, if we'd stopped him when he was getting out of his car.</p>
<p>It seems to me that that is an unworkable rule and it just adds further confusion to the situation.</p>
<p>Yet, it's necessary, necessary because it's the only way you avoid reversing Chimel.</p>
<p>Now, the... the other point I want to make is Justice O'Connor I think made a good point about the inventory search.</p>
<p>Why can't we draw Belton narrowly because in 90 percent of the cases, we're going to have an inventory search anyway?</p>
<p>And why can't we maintain some semblance of Fourth Amendment protection in automobiles?</p>
<p>And finally, with regard to the handcuffs point, Mr. Garre's point that people sometimes get out of their handcuffs, I'd simply like to say if we indulge in the presumption that suspects are going to get out of their handcuffs, there's simply no search incident to arrest rule that we can fashion that doesn't just have us searching everyplace on God's green earth.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask you a question...</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: if your time is up?</p>
<p>In your experience, does an inventory search include the right to search containers in the... in the car?</p>
<p>Belton, of course, gives the... the Government the big advantage.</p>
<p>You can search every container in the car.</p>
<!-- frank_w_dunham_jr--><p><b>Mr. Dunham</b>: I believe an inventory search does not allow you to search opaque containers within the car.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Dunham.</p>
<p>The case is submitted.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: The honorable court is now adjourned until Monday next at ten o'clock.</p>
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Attribution:&nbsp;</div>
The Oyez Project </div>
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Fri, 09 Jan 2009 14:49:06 +000056787 at http://www.oyez.orgUnited States v. Flores-Montano - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2003/2003_02_1794/argument
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Case:&nbsp;</div>
<a href="/cases/2000-2009/2003/2003_02_1794">United States v. Flores-Montano</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Lisa Schiavo Blatt</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument now in 02-1794, the United States v. Manuel Flores-Montano.</p>
<p>Ms. Blatt.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Thank you, Mr. Chief Justice, and may it please the Court:</p>
<p>Customs officials have the responsibility to protect the Nation's borders against the entry of dangerous or unwanted items.</p>
<p>Consistent with that fundamental and sovereign necessity, customs officials have historically had the power to open containers and conduct a thorough search of items without a warrant, probable cause, or any particularized suspicion.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, now in this case, I suppose the Government did have reasonable suspicion.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: That's correct, but we did not rely on it and the evidence was suppressed on... based on the Ninth Circuit's rule that a gas tank cannot be removed and opened without reasonable suspicion.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Can you make us, i.e., I'm not saying this pejoratively, but can this Court be required to decide what might be a hypothetical question, it seems to me, the dog barked and therefore they had grounds for thinking their were drugs in the gas tank, and he kicked the gas tank and it was hollow, and no one disputes those facts.</p>
<p>But you want to decide... us to decide this case, as does the other side, as if those facts didn't exist.</p>
<p>It sounds to me like a hypothetical question, almost in the direction of an advisory opinion.</p>
<p>What would we have decided if those facts didn't exist?</p>
<p>But they do.</p>
<p>So how does that work?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, I don't think it's an advisory opinion in that the evidence has been suppressed.</p>
<p>But, Justice Breyer, let me directly answer your question on why the case is here.</p>
<p>In 2002, the Ninth Circuit held that the Constitution is violated if customs officials remove and open a gas tank without reasonable suspicion, and in that case there was reasonable suspicion, making the case very difficult to challenge.</p>
<p>The Government legitimately wanted to challenge the case in a... in a... in a case where the officers actions could not be subject to a potential Bivens liability for violating the clearly established law of the Ninth Circuit.</p>
<p>At the same time, customs officials viewed the Ninth Circuit's decision as posing an immediate and present danger to their ability to protect the border, and they thought it imperative to try to challenge a... bring up a case that challenged that rule as soon as possible.</p>
<p>So two weeks after the Ninth Circuit's decision was decided, respondent drove across... drove across the border with a gas tank full of 80 pounds of marijuana, and the Government, we think legitimately, told the district court, and there was no secret at any time in this case, including at the petition stage, that we were not going to put on evidence that there was reasonable suspicion, even though the dog alerting and the solid-sounding tap of the gas tank, we could have established or presumably could have established that that was reasonable suspicion.</p>
<p>And both the district court and the Ninth Circuit summarily affirmed the... suppressed it and then affirmed the suppression, because there was not reasonable suspicion, and that's why this case is here.</p>
<p>The customs officials see this case as a threat to their ability to deter and detect smuggling at a container that is relatively large and that is commonly used... in fact, it is the most common container used along the Mexican border--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Can we go back to your--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --to conceal contraband.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --You gave a Bivens justification for what is extraordinary.</p>
<p>I mean, it's not a violation of article 3 for us to decide it on your basis, but still, this Court deals with concrete cases with actual facts and not with abstract questions.</p>
<p>So is it... is it your notion... is it correct that what the Ninth Circuit says becomes clearly established law so that an officer would genuinely be... be subject to Bivens liability when this Court hasn't addressed the question?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: No, but we didn't want to have to tell the men and women who were in charge of enforcing the border that they should be subject to a potential suit, at least being named in their personal capacity in a lawsuit.</p>
<p>It seemed more appropriate from our perspective to try to bring a case as soon as possible where we think we could have proven reasonable suspicion, but it squarely fit within the Ninth Circuit's rule that reasonable suspicion was required.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I suppose you could also say it's a question of resources.</p>
<p>The Government does not want to have to put on witnesses, get officers up from the border, have them sit in court, go through the motion to suppress, so that you have a very real interest simply in expediting trial procedures by taking the course you did.</p>
<p>I don't know if that helps you on this article 3 problem or--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: It... it helps to explain why we thought there was a paramount interest in getting the case as soon as possible.</p>
<p>We didn't want to divert resources away from the border into having to prove our reasonable suspicion.</p>
<p>In fact, there's already been serious fallout in terms of trying to prove reasonable suspicion when we search gas tanks, because the Ninth Circuit has said that all of our discovery on how we train our dogs has to be produced, and this is extremely sensitive information.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --This is a... I wasn't doubting the Government's motive here.</p>
<p>I think you have excellent motive, though maybe Bivens, maybe it was a little overconcerned about the Bivens, maybe it wasn't.</p>
<p>But what I'm interested in is the law.</p>
<p>That is, this isn't the first case where this has happened, not necessarily involving the Government, and I'm not sure how the law's supposed to work.</p>
<p>Parties come in and they say, we would like you to decide this issue.</p>
<p>I'm sure they would.</p>
<p>But in order to get to that issue, we have to assume out of the case certain facts that everyone agrees are there.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, that--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Have you ever looked this up?</p>
<p>Are there any... have you come across this kind of a problem?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --I think it's... it's clearly an... as Justice Ginsburg said, it's not an article 3 problem.</p>
<p>Let me say, Justice Breyer, there's no finding that there was reasonable suspicion, nor do we put on any evidence that would have permitted that.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, all there is, is there happens to be, I think, in the record, undisputed facts that the dog barked and that they kicked the gas tank and it was hollow.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, I... wait a minute--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --Anyway--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --I think the kick of the gas tank or the tapping showed it was full, not hollow.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Full, whatever, whatever, whatever--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --Am I right?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Yes, it was--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Showed... showed whatever it wasn't supposed to show.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Exactly.</p>
<p>And I think the dog doesn't bark, he just alerts.</p>
<p>Is that right?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --That's right.</p>
<p>But let me just say as a--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I know we have an agreement on that.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --as a prudential matter--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Are we sure that there was reasonable suspicion?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --No, there's no--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Or is it just possible that there was... that there reasonable suspicion?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --There's no finding, Justice Scalia.</p>
<p>It is our position that we could have put on proof that this constituted reasonable suspicion by putting the dog's handler on and the agent explaining what a... what a solid-sounding tap means.</p>
<p>We didn't do that, so there's no finding, but let me just say--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But the Ninth Circuit would require evidence of the training of the particular dog and so forth?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, at least that the defense is titled to discovery on that so that the... the handler.</p>
<p>But let me just say, Justice Breyer, as a prudential matter, I think that that is a legitimate concern at the petition stage when we petitioned, and there was no secret that we intentionally brought this case for the purpose of having it reviewed.</p>
<p>But the case has been briefed, there's no question about standing, and we think it's appropriate to reach the issue.</p>
<p>Twenty-five percent of all drug seizures along the Mexican border are hidden in gas tanks, that we've not only found marijuana, cocain, heroin, currency, methamphetamine, there have weapons and ammunition--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Does it matter how... how much you have to take apart of a car to make a search?</p>
<p>Does that enter into the ultimate resolution in the Government's view or do we look at how easy it is to remove a gas tank and look at it?</p>
<p>Does that matter?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, it might matter, but it certainly doesn't matter where the... the compartment or container in question is designed to be removed and put back together by mechanics.</p>
<p>A gas tank removal is something that can be done within a reasonable time and that--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How much time does it take?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, in this case, once the--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: To take it off and put it back?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, in this case it took under a half an hour, but, Justice O'Connor, I want to stress that in other cases, depending on the type of car, it might take an hour or two hours, and the last thing we want is our customs official to be on a Fourth Amendment stopwatch and telling the mechanic to rush.</p>
<p>So they need--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: On the 25 percent figure, you say 25 percent of all seizures from vehicles?</p>
<p>Does that include 25 percent of seizures where you search the person or?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --No, it's 20--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What's... the 25 percent is a percentage of what?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Twenty-five percent of narcotics seizures in terms of amount of seizures along land borders.</p>
<p>That doesn't include seaports--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Oh, 25 percent in terms of quantity?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --In terms of number of seizures.</p>
<p>It doesn't necessarily mean how much volume, but it's a lot, given that the gas tank is one of the largest containers.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But included in that base is seizures from the person where somebody has it in their pocket and so forth?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Yes, that's correct, but--</p>
<p>Argument of Steven F. Hubachek</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, the gas tank here had 80 pounds in it, didn't it?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Eighty pounds of marijuana with five gallons of gas, and that's an enormous amount, and this could have been another... another... other dangerous items, it doesn't have to be just marijuana.</p>
<p>And they have seen it all.</p>
<p>At the same time, someone does not store personal effects in their gas tank.</p>
<p>It's just a repository for fuel.</p>
<p>And this involved far less of an intrusion on privacy interest than the type of searches that can happen and do happen at the border, such as the traveler's baggage and the passenger compartments in the vehicle.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: May I ask of you if the Government has procedures in place for the cases in which inadvertently they damage the car or... or maybe the thing might blow up on some occasion or something like that?</p>
<p>What... what's remedy does the citizen or the maybe an alien or the citizen have in that situation?</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Any time there's damage to any types of property at the border, the person is handed a claims form, which is processed through customs, first under the Federal Tort Claims Act.</p>
<p>Now, there's an exemption for claims arising out of the tension of properties by customs under 28 U.S.C. 2680(c), but assuming that happens, customs can pay, and does pay, up to $1,000 under the Small Claims Act, under 31 U.S.C. 3723.</p>
<p>And Justice Stevens, there's another statute, a customs-specific statute, 19 U.S.C. 1630, that would permit customs to pay up to $50,000, but the restriction is for... it has to be for non-commercial properties, so that would be personal property that customs damage.</p>
<p>So there's--</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I would think there are a lot of cases, repair bills are getting pretty expensive now, where $1,000 wouldn't cover it, the damage to a car.</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, that may be, Your Honor, but this doesn't involve claim of damage and--</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: No, I just... but it's... it's sort of in the background as we're asking whether it's reasonable in the... in the... in an ultimate sense, and I just... that's one of the things that I'm concerned about is--</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, sure, a gas tank is about $100, $200 item, and it's conceivable that any search can result in damage.</p>
<p>Now, respondent has never claimed--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --You mean to repair it or to replace it?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, you're right.</p>
<p>You could have... you could have--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: When you say $100, to reconnect it, it's about $100?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --That's right.</p>
<p>You would... no, the item itself probably costs under $200, but you would have labor costs.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, that's not true.</p>
<p>I recently had to get one, and it's expensive, I can tell you.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: [Laughter]</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, depending on the car, the ones I've seen have been under $200, but you would have associated labor costs and maybe other parts.</p>
<p>But the basic point is that this is a container, it's a paradigmatic type of item that can be opened by the... at the border without any particularized suspicion.</p>
<p>And--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Ms.... Ms. Blatt, may I just go back before you go on with your argument to follow up on Justice Stevens' question?</p>
<p>You spoke of the $50,000 limit as being for damage or, I guess, destruction of non-commercial property.</p>
<p>Does... does the non-commercial mean, as I would assume it would mean, that a truck or lorry that is driven as a... as a carrier would not be covered, damage to that would not be covered by the $50,000 coverage?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --That's right.</p>
<p>And property is--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So if the... if the... if the truck, I mean, if the commercial truck catches fire as a result because there's a spark in the gas tank and everything goes up in flames, in effect there's no redress?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, I don't know too many commercial importers that don't have insurance that would cover damage by customs, but the important thing is--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but the customs isn't going to pay for it.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Customs is not going to pay for that.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But this would happen in a--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: But--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --reasonable search too, wouldn't it?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Excuse me?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I'm... this would happen in a search where there is probable cause as well, it could happen, couldn't it?</p>
<p>When there's... when there's reasonable suspicion, the same thing could happen, couldn't it?</p>
<p>And you also wouldn't have to pay for the truck?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, that... that's absolutely true, but--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Right, and you would also--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --And that would... and that would not render what was otherwise a reasonable search unreasonable, would it?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --It would depend.</p>
<p>As long... assuming they're acting reasonably in carrying out the search, it's still reasonable and--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The mere fact that there's no compensation for actual damage, accidental damage to... to the truck would not render the reasonable search unreasonable if there were suspicion, right?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --That's correct.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And the reason--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --So why should it do it here?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: There have been thousands of disassemblies at the border--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But isn't... isn't the point that in... in the... in the hypothetical that Justice Scalia puts, with the probable cause, we start with the assumption that the offices are in there acting reasonably.</p>
<p>The question in this case is posed by Justice Stevens' question.</p>
<p>Would the potential for damage... is it reasonable to go in there in the first place without probable cause?</p>
<p>So that is a different issue, isn't it?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well, no, I think it's reasonable to search property at the border by virtue of the fact it's at the border, and given the Government's overriding interest and the person's reduced expectations.</p>
<p>But Justice Souter, there has been no known or reported instance of this hypothetical risk materializing at the border with respect to a customs search.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Ms. Blatt, you mentioned, you started to give a number, 1,000 searches, fuel tank searches, and then you gave a number earlier about how many gas tanks turned out to have contraband or something.</p>
<p>Do you know what percentage of those gas tanks were... was there disassembly and what percentage were done by a less intrusive means by the dog and the tapping on the fuel tank?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, all gas tank seizures, which there have been thousands, have to be done by removal and disassembly of the tank.</p>
<p>There are, you could call them searches, because that's what they are, of gas tanks that don't involve removal and disassembly, if you use sophisticated equipment such as density busters and X-rays.</p>
<p>But all these seizures that are occurring at the border, in order to get to the drugs, you have to unscrew the bolts that are holding the tank to the undercarriage of the vehicle and remove the tank and open it up.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Is the practice then to just go straight to that procedure and skip the dog and the tapping, or do they go through the whole thing?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, they have dogs at all the major ports of entry, but the dogs don't always alert, so I wouldn't say it's necessarily skipping, but the dog may not alert.</p>
<p>They also at some of the facilities have what are known as fiber optic scopes, which are extremely sophisticated and effective equipment.</p>
<p>Unfortunately, 75 percent or higher of all tanks have, in the filler tube, have an anti-siphoning valve that blocks the entry of the scope into the tank, but they will try that if they have it.</p>
<p>It's not always available.</p>
<p>It's an extremely expensive piece of equipment.</p>
<p>It costs $160,000 per unit.</p>
<p>But if they have that, presumably they try that first, and if it's blocked, then they put the car up on a lift and unscrew the metal bolts that are holding them that... to the metal straps that are holding the tank and they'll remove the tank.</p>
<p>And then from there on it's pretty straightforward on how to open up the tank.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But if we... if you prevail in this case and they don't have to do that, they can just say it's good enough to go right to the disassembly and we don't have to bother with dogs and maintaining dogs and anything else?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Yeah, that's right.</p>
<p>Our position is where the procedure imposes only a modest intrusion on interests protected by the Fourth Amendment, the officers don't have to exhaust every least intrusive method.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Obviously that would be the result if we were to support the Government's view here, and I think we're interested in knowing how often people's gas tanks would be disassembled if the Government's view prevails here.</p>
<p>How many times percentage-wise would people crossing a land border expect to have their gas tank removed if the Government prevails here?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: It's... it's--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I mean, let's say 1,000 cars cross the border point in an hour.</p>
<p>What percentage of those will have their gas tanks removed?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Not very many, Justice O'Connor.</p>
<p>Let me give you these statistics.</p>
<p>There have been 120 million vehicles that passed through this country's borders last year, and over the last four years, four years, there have been 8,000 gas tank disassemblies.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yeah, but you didn't have this rule established that you didn't need reasonable suspicion.</p>
<p>What we're asking you to speculate on is if the Government prevails and we say, fine, you can take the gas tank off, you don't have to have any degree of reasonable suspicion.</p>
<p>Then how many will there be?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Exactly the same.</p>
<p>It has always been the rule up until the Ninth Circuit that we could take apart a gas tank without reasonable suspicion.</p>
<p>Customs officials--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Have any of the other circuits followed the Ninth Circuit's... other circuits have that... which have land borders?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --No, no, they've always been able to take apart a gas tank on something less than reasonable suspicion.</p>
<p>But Justice O'Connor, it is true that as a practical matter customs does not take the time or energy to take... to call the mechanic, pay for the mechanic to take apart the gas tank unless their suspicions are focused on the gas tank, and it will usually be because of the dog alerts, or the more common situation is it... that they're just not sure whether that gas tank has been altered.</p>
<p>Maybe a bolt looks different from another bolt or it looks like it's been unscrewed, and it may be the person had their gas tank worked on, but they're just not sure, they have some concern about the person's travel plan story and so they... they want to go ahead and make sure the gas tank's not containing contraband.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Suppose... suppose you prevail.</p>
<p>Are there any regulations or... or procedures under which you'll keep statistics and data, so that say over... suppose you prevail, then over the next five years we can... we can look back and see that there have been 10,000 searches and contraband has been discovered only 5 percent of the time or something?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Yes, they keep statistics on seizures on narcotics and what are known as positive and negative seizures.</p>
<p>And in the last four years of the 8,000 gas tank seizures that have happened, 85 to 90 percent of those have been what are known as positive hits or there's been a presence of contraband, and so 10 to 15 percent of those have been so-called negative searches where the tank is reassembled and the motorist sent on their way, and I... we would expect that those statistics to continue, that they have limited resources and they conduct a search when they think it's appropriate and necessary.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But you don't know of the 8,000 what percent were without any suspicion?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: No, but there's never been any kind of requirement.</p>
<p>I... I think we can--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<p>So--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --confidently say their suspicions were focused on the gas tank, whether or not that that would have convinced a court that it was reasonable under--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --Yeah, I see.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --this Court's definition I think is unclear.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Are there any rules or administrative procedures in the customs that would say... that would apply in respect to suspicionless searches of gas tanks?</p>
<p>For example, random searches, do it once a month or here's... we have a random program or we check up to see how it's going or... are there... are... is it just each customs agent for himself when... if you win, is it each customs agent for himself with no check whatsoever?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: No, well--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Or are there internal administrative checks that would be a kind of substitute for a judicial check?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --There are extensive training of customs officials--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But what does it say--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --about how to go about searching a car, where to look, where... where smugglers typically hide their drugs, and what type of evidence they may leave behind, and that's what the agent is looking for.</p>
<p>The agents are also trained though, Justice Breyer, to rely on their experience and intuition and hunches, and over time border officials gather extensive experience about what they're looking for.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --When--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: They also can consult with a supervisor if they have a question about whether a search should actually be done.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --So, for example, you have a customs agent whose experience leads him to believe that parents with small children are more likely to be smuggling heroin.</p>
<p>Now, this would be an odd customs agent.</p>
<p>Is there anything in the system that would discover that this is the person who's doing all the suspicionless checks and something's gone wrong here, so there's... do you see what I'm looking for?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, his--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I'm looking for some way of--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --supervisor would be aware of the search, but with a 85 to 90 percent success rate, that possibility seems rather remote.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --But then you have the suspicion searches in that 85 percent.</p>
<p>I'm trying to figure out if we have each customs agent for himself to conduct whatever suspicionless searches he wants, and you have a few of the, perhaps in every organization there are a few unusual ones who cause some problems, are there any internal checks within the system, because you're going to not have a judicial check?</p>
<p>I wonder if there are any administrative ways.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: There may be checks where people can file complaints, I don't know.</p>
<p>But the same officer could be instructing that the spare tire compartment be taken apart or that a tire be taken out or that every scrap of luggage can be taken off or that the person could empty their wallets, their shoes, their purses, their clothing, and put the person to a considerable inconvenience.</p>
<p>But a gas tank is not a container, Your Honor, that there's some sort of heightened expectation of privacy.</p>
<p>It stores fuel.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So assume that if there's any de facto check, there's more likely a check on the gas tank than there is on emptying your wallet and taking your shoes off and everything else, namely the expense that it causes to the customs service in time... in terms of the time of its agents, and I suppose you have to pay these mechanics that come and do it.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Yeah, it's about... cost runs about a cost of $90 to $140 per visit, but Justice Scalia, there are also, very consistent with your point, hundreds of cars in a lane that this inspector has to get through, and they always are concerned about moving through the legitimate traffic and legitimate trade.</p>
<p>They want to get people in, they want to get people past the border.</p>
<p>At the same time, they're extremely concerned about what's in... what people might be concealing in their vehicles, and a vehicle is an extremely large container and a gas tank is a relatively large container, and given that it is 25 percent of all drug seizures have been hidden in the gas tank, they have an essential interest in being able to not only detect it when they think it might be there, but also deter it.</p>
<p>It has been customs' experience over many, many years that smugglers are looking to exploit any weakness along our border security efforts, and they will readily place their drugs where they're least likely to be detected.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Does that mean, for example, that you could rip out all the upholstery because you can hide drugs inside the upholstery?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Well, ripping out the upholstery would first present a question of what kind of intrusion there is on... under the Fourth Amendment or an interest protected on the Fourth Amendment, and there may be a significant deprivation of a property interest.</p>
<p>Now, we would probably contend that we could rip what upholstery was reasonably necessary to conduct the search.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I thought... I thought you would, and maybe I'm recalling your brief incorrectly, but I thought you... you made a distinction between the kind of intrusive bodily search like a strip search and said that's the only one where you would need reasonable suspicion.</p>
<p>All others, all that involve only property and not the person, the rule should be at the border, anything goes, no reasonable suspicion required.</p>
<p>Is that the position the Government is taking?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: There's a small nuanced caveat to that.</p>
<p>We think we can search property without suspicion and use whatever force is reasonably necessary.</p>
<p>At the same time, Justice Ginsburg, the Constitution still applies with respect to the property and the search has to be carried out in a reasonable manner, and if someone took a giant axe and starting whacking away at leather upholstery, that would very well constitute an unreasonable search.</p>
<p>But this case doesn't involve a claim of damage and respondent has never said that he was deprived of a significant possessory interest in his gas tank.</p>
<p>Rather, what happened, it was taken apart and it could have been easily put back together.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But your... your answer to my question about property is, as long as you're not wantonly destructive, you can... any... anything that's in the car as distinguished from a person?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: That's our... that would be our position, but I'm saying it also involves a very distinct factor, and that is that there's a deprivation of a significant property interest if the item is going to be obliterated or its value going to be destroyed, and that's not the contention made in this case or the type of deprivation of a privacy... of property interests you would have with a gas tank.</p>
<p>But sure, if you took a vase and smashed it when you could have looked in it, or let me just say if you wanted to open up the trunk--</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, but not just on the... the... if you smash it unnecessarily, but suppose the only way to get behind the fabric in say a seat cushion or something like that is to cut it open.</p>
<p>It... does your policy apply to that situation too?</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Well--</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Because I don't suppose you have a seamstress who sews up the seat right away.</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Right.</p>
<p>Well, we would look at first what the type of deprivation is, and if it's a teeny little tear that can be easily repaired, maybe there's not a significant deprivation.</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: But suppose it's something that cannot be repaired.</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Let's--</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: You have to cut up a seat... a seat cushion.</p>
<p>What... what do you do?</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --Let's suppose that there's a significant deprivation.</p>
<p>It would at least be reasonable for the court to look at what kinds of alternatives were available to the Government.</p>
<p>As a practical matter, Justice Stevens, we... customs officials have long, skinny metal probes which are like needles that they use to search upholstery, so if it's fabric you wouldn't even see it going in and out.</p>
<p>If it's leather, you probably are going to get a tiny hole.</p>
<p>Now, whether that would constitute a significant deprivation--</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I see.</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --might turn on the facts and circumstances, but these are wonderful pieces of equipment that customs officials use all the time to look inside places that are hard to see, and they use them exactly on seats.</p>
<p>But to be sure, Justice Stevens, customs gets complaints about upholstery.</p>
<p>They let a dog into a car and the dog scratches the upholstery or the agent's going in there and searching and he steps on something.</p>
<p>These kinds of things happen at the border and customs have to... have a job to do and they've got to use whatever force is reasonably necessary.</p>
<p>But I think these cases are separate because they involve some arguably significant deprivation of the owner's possessory interest in that piece of property.</p>
<p>If it's a leather seat and it's torn, the value's gone down.</p>
<p>But the Ninth Circuit applies a rule that doesn't let customs officials open up a container even where they can put it back without damaging the tank, and so we think that case is quite distinct.</p>
<p>Mr. Chief Justice, I'd like to reserve the balance of my time.</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Ms. Blatt.</p>
<p>Mr. Hubachek.</p>
<p>Am I pronouncing your name correctly?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Yes, Mr. Chief Justice.</p>
<p>Mr. Chief Justice, and may it please the Court:</p>
<p>The Court's decision in Montoya established that for a search other than the routine border search, reasonable suspicion was required.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, Mr.... Mr. Hubachek, Montoya discussed that in the context of a search of the person.</p>
<p>It... it said we reserve judgment on whether a strip search of his body... it was talking about people, not gas tanks.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Absolutely, Mr. Chief Justice, but four courts of appeals have unanimously applied the analysis in Montoya to searches of property or effects under the Fourth Amendment.</p>
<p>The Ninth Circuit's decision in Molina-Tarazon is consistent with those cases in that it applied the Montoya paradigm to the search of the gas tank and the seizure of the gas tank.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, would you say that a ship coming in at a port in our country from elsewhere cannot be searched thoroughly without reasonable suspicion?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: A ship could be searched thoroughly without reasonable suspicion.</p>
<p>I... but--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But a land vehicle coming from, for example, Mexico at the land border crossing cannot be?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I... the distinction that I would draw would be the point--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: What is the difference?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --of disassembly.</p>
<p>I don't think that you can disassemble conveyances that come to the border.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: You think that if the ship came in that the gas tank could be removed and examined for presence of illegal goods?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I... I don't think that it would be reasonable to disassemble a ship either, particularly in light of all of the various methods that are available.</p>
<p>I don't think it's supported historically either.</p>
<p>You know, the initial statutes that the Solicitor General cited in the brief don't support any sort of disassembly of conveyances, the... particularly the 1790 statute.</p>
<p>What it talks about is allowing customs officials on board to look around, to mark items, to take records and so on and so forth, and then when items are being passed through customs, then the customs officer--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But in today's world, the figures, the statistics are staggering about how many narcotics are brought into our country by way of the use of gas tanks.</p>
<p>I mean, that's an incredibly large figure.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --And I certainly would--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And... and what are we supposed to do about that?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, Justice O'Connor, I think that what we're supposed to do about it is to use the methods that are tried and true by the customs service itself.</p>
<p>If the customs service itself wants to move away from dismantling-type searches into searches that involve the use of the... their technology--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, they have to dismantle to get into a gas tank where it... the opening will not permit the entry of a... the little looking device.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, sometimes... maybe in the brief I was too excited by all this technology that's available, but I think that sometimes it's important to start back at the initial things.</p>
<p>Molina-Tarazon, for instance, the case that developed this rule, found reasonable suspicion based upon mud spatterings on the bottom of the tank.</p>
<p>Carreon, the Tenth Circuit decision, found reasonable suspicion in large part based upon the fact that certain bolts were shiny.</p>
<p>So--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. Hubachek, now you say, you give the impression that all courts of appeals have agreed with the Ninth Circuit.</p>
<p>Ms. Blatt gave the impression, at least to me, that the Ninth Circuit was alone on this.</p>
<p>What is the state of decisions, say in the Fifth Circuit, which has so much land border like the Ninth Circuit?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Mr. Chief Justice, no court but the Ninth Circuit has addressed this specific issue here, the dismantling of gas tanks.</p>
<p>The Fifth Circuit, though, has held--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is it not done along the Texas border?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --I'm sure it is done, but there just hasn't been a case that has arisen.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But there hasn't been a reported case where it was challenged?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: That's correct.</p>
<p>But however, the Fifth Circuit has decided that intrusive searches of property are subject to the Montoya analysis and that reasonable suspicion is required in a drilling case called Rivas.</p>
<p>And in that case, you know, they used a drill to drill into the vehicle.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Is... is it the... you... you described the search as intrusive, but as I understand it, your objection is not to the intrusion, your objection is to the disassembly.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Yeah, yes, that's correct.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So... so the... the... I... I assume your objection rests on either or both of these grounds, either the value of the property, which is either lessened or placed at risk, or the inconvenience to the driver and passenger while the... while the intrusion or the disassembly goes on.</p>
<p>Which is it?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I would say it's both of those and I think that the... of course, the Court's Soldal decision establishes that a meaningful interference, even if there's no privacy interest at all, still implicates the Fourth Amendment.</p>
<p>But certainly there are issues with respect to value.</p>
<p>If my gas tank has been dis--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: All right, you know, what is the issue on value?</p>
<p>They'll put it back together again, there's apparently no record that... that these blow up all the time.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So... so what is the... the property concern?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I think that there a number of concerns.</p>
<p>Number one, do... if I resell the car, do I have to disclose that the gas... the fuel system was disassembled?</p>
<p>I mean, what if I have a warranty?</p>
<p>Does that exclude things from a repair by the warranty because it's been worked on by someone who's not authorized by Ford or whatever company owns the car?</p>
<p>Are there issues with emissions?</p>
<p>You know, this is a 1987 vehicle that we're talking about and the systems are much more complicated now.</p>
<p>I just read yesterday a regulation indicating if you have a.04 gap, you have to have a sensor that can determine if you have that much leakage,.04 inches, that you have to have a sensor that determines that kind of leakage.</p>
<p>Would it violate the terms of your lease to have some unauthorized person or some person you don't know about to go ahead and disassemble--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Your... your clients weren't worried about all that apparently.</p>
<p>I mean, I don't think 60 pounds of cocaine was good for the gas tank either, was it?</p>
<!-- unknown--><p><b>Unknown Speaker</b>: [Laughter]</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --No, I'm sure that it's not, and certainly you'd have to--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Is that... is that the only kind of... I mean, I take it you concede there's no privacy interest here?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And... is that right?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --It... it certainly is... is not a tremendous privacy interest.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, is there any?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, all right.</p>
<p>So there's no privacy interest and all there is is an interest that you don't want the Government hurting your property, which is conceivable in an interest.</p>
<p>But on the other hand, they say no privacy interest, conceivable the Government will hurt your property.</p>
<p>Every day of the week we deal with government people might hurt our property.</p>
<p>And on the other side, 25 percent of all the drugs that come into the United States outside... by land, come in in gas tanks, so this is an overwhelming interest for letting you do it.</p>
<p>After all, they search your suitcases, they search my pockets, they search every piece of luggage, they... they search anything you're bringing in, and it's not an unusual thing at a border.</p>
<p>So... so, how... how do you respond to this strong interest on their side and no privacy interest and very little property damage risk on the other side?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I don't agree that there's very little property damage risk based on the... the other things that I've just mentioned.</p>
<p>Plus there's also the issue of the security of the individual, which was focused on in Molina-Tarazon, you know, what confidence do you have that this crucial system in your vehicle is going to be reliable when it's been taken apart--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, presumably the person filling the gas tank with drugs had to disassemble the tank to put the drugs in there, so apparently willing to take that risk--</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --But--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --but not willing to let the customs service do the same thing?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Right.</p>
<p>Well, people who smuggle drugs in gas tanks are willing to take a lot of risks, but the average traveler who comes to the border and is faced with the possibility of random disassembly of their gas tank is not going to be willing to take those risks.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, how... how often does that happen that an innocent person has his gas tank person random... randomly disassembled?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, there's... one of the weaknesses of this record is... is that although the customs service claims that it's important for them to be able to do random disassemblies, they haven't established any sort of program under which they do random disassemblies, but there were several hundred gas tank disassemblies in which there were no drugs found.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, we were told that 15 percent or 20 percent of the time nothing is found, 80 or 85 percent something is.</p>
<p>That... that's my understanding of the Government's submission.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Right.</p>
<p>And I think that that supports the notion that when they act upon suspicion and their experiences, we've heard detail this morning that they can be effective.</p>
<p>That doesn't mean though that it's essential to have the ability randomly to disassemble based upon those suspicions.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They're not talking about randomly.</p>
<p>They're... they're talking about... I... I think... I think Ms. Blatt said hunches.</p>
<p>I mean, there, you know, there... there are just some intuitions that agents get that may not rise to the level of what a court may acknowledge is an articulable suspicion, and they shouldn't... they shouldn't have to worry about whether they have to prove that or not.</p>
<p>I... do you really think they're going to do it when... when there's no reason whatever to do it?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, that... that's the problem with absolute discretion.</p>
<p>Any... any officer across the United States can make the rules for that particular day.</p>
<p>But I think that it's important to bear in mind that these hunches have, you know, there are many--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But we're talking about border searches with customs officials who are trained and they have limited budgets.</p>
<p>Why do they want to pay the cost of having a mechanic disassemble an engine unless they have a good reason for doing it?</p>
<p>I mean, it's inconceivable to me that they try to run up the number just to run up the number.</p>
<p>It's too expensive.</p>
<p>They don't have that kind of money.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I think that any seizures that the Court has required there actually be founded suspicion are troublesome for the officers.</p>
<p>I mean, if they pull people over randomly, that's time that's taken away from other activities that they could be undertaking, so there's always a natural disinclination to do that.</p>
<p>But that doesn't change the fact that this Court has repeatedly in--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But... but not as easily observed and not as easily recorded by supervisors.</p>
<p>I mean, it seems to me if you have an agent who repeatedly has a... cars backing up at the... at the gate that... that he's controlling, and who repeatedly comes up empty on... on gas tank searches, that fellow's not going to be there very long.</p>
<p>I mean, it, it's easy to observe somebody who's abusing the system, it seems to me.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, again, I think that it's important though that officers not be able to act arbitrarily across the United States.</p>
<p>It's not... it's not necessarily going to be limited to one officer so that we'll always be able to weed them out.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: In... in your answer to Justice Souter's question a few minutes ago, you said that not only was the property interest important, but the inconvenience was a... was a factor, and I don't know that we've ever said much about that that would... would support it.</p>
<p>Certainly there's going to be some inconvenience any time you cross a border, and this thing, if it takes half an hour, is that really a Fourth Amendment factor?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I... I think it's a factor, but I don't think it's as important as the other factors we've talked about, the potential diminution in value, the lack of security upon the... the individual who's driving away in a vehicle that's been altered by unknown individuals, and the fact that, you know, that--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: When you... when you... once you... you... the... the trunk is fair game, any luggage is fair game, fancy Gucci shoes might be fair game, it seems to me that the fuel tank, if we're looking at it from the point of view of the... the... how much damage there might be or the cost, is... is a lesser thing than personal items, and also that the privacy interest is much stronger in what we already say can be done without suspicion.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --I... I agree that the suspicion... that the privacy interest in the gas tank is not as high as the other items that you've mentioned.</p>
<p>However, it still is true that when you put your Gucci shoes on, you're planning to take them off, so if an officer takes them off to look at them, that's not a problem.</p>
<p>If they open up your luggage, your luggage is expected to be opened, and in fact, 1461 requires that you furnish an opportunity to open up that luggage.</p>
<p>But no one expects that their gas tank when they buy a new car to a tremendous expense that they put their family in, no one expects that that part of their vehicle is going to be open like they know that their luggage is.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: One other question is whether it is unreasonable to... to require them to expect it if they're running their car back and forth across the border?</p>
<p>I mean--</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I... don't think that it's--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --What... why is it wrong?</p>
<p>What... what test do you... do you urge as to... as to when... when a search by border agents cannot be done?</p>
<p>What... what is the criteria?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --I think when it involves disassembly of property and--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Anything that involves disassembly.</p>
<p>So... so what about taking the cap off of a... off of a bottle that's there.</p>
<p>Is that... is that disassembly?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I think the cap off the bottle is similar to the luggage.</p>
<p>You would just open up the cap and that... that's what's expected to happen, but no one--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What if the bottle's sealed?</p>
<p>I mean, you know, it's... it's... it's a sealed bottle?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --I... I guess--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You have to break the seal.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --That could result, I mean, that may be necessary--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That can't be done?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --That may... it may be situations where that shouldn't be done without--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Suppose it's the same as a... suppose there's a terrorism problem and--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --Wow.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --they say that we want to search every fifteenth truck that comes in, there might be anthrax or bombs or whatever and we want to give the agents the power to look thoroughly into these big trucks even without suspicion.</p>
<p>Now were you saying the Fourth Amendment would stop that?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --If we're talking about a specific threat, where there is, you know, a specific--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, no, non-specific threat, it's the present situation.</p>
<p>The Government simply says, we're worried about our borders, they're not secure, and we want to look at the trucks, that we want the... the customs agents to be able to look at trucks that are coming in.</p>
<p>They may have dangerous items on... in... on board, and we want them to look whenever they want.</p>
<p>It's at the border, just like your purse, just like your valise, just like your bag.</p>
<p>Now, what... what's your view of... is your case the same, different, or what do you think of that case?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --I... I think... I don't think that... that suspicionless searches under those circumstances would be reasonable because there's not been any showing that random searches or disassemblies of gas tanks would be at all effective.</p>
<p>In Delaware v. Prouse, this Court disapproved the process of pulling over people randomly to check registrations, both because it was not demonstrated to be effective, but also because it was not demonstrated to have any sort of deterrent effect.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right, so in your view, suspicionless searches of trucks, whether for bombs, anthrax, weapons, or drugs all stand or fall together?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I think that... I think that there... at least with the every 15 cars, there would be more of a deterrent because then they would know that every fifteenth car is being searched, but there is no program in place now, there was nothing offered below, in fact, there was no evidence offered below--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's a different question.</p>
<p>My question was, do they stand or fall together?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Right.</p>
<p>I... I think that the... that our case is stronger than your hypothetical.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Delaware against Prouse had nothing to do with the border.</p>
<p>I mean, that was on a highway... inland highway in Delaware.</p>
<p>The Fourth Amendment has always been much relaxed at the border.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: No, I... I agree with that, Mr. Chief Justice, but my point from Delaware v. Prouse is that in... in examining a random program, the Court looked to two things.</p>
<p>It looked to whether or not it was demonstrated to be effective.</p>
<p>It's not demonstrated to be effective here.</p>
<p>And it also looked to whether or not there was going to be a deterrent effect from it, and there was no--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But... but you just can't transplant a case involving a car on a highway inland to the border.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --No, I understand.</p>
<p>My point is... is that the empirical evidence was important in the Delaware v. Prouse case, and that's how this Court distinguished it in Sitz, which is a case that the Solicitor General cited in support of the notion that the Court shouldn't look to other alternatives.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What... what do you do about United States v. Ross when... when you're urging your... your... your disassembly point?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Now that... that was a case involving a border search statute, not... not the one at issue here, to be sure, but nonetheless what we said, to quote it, is certainly Congress intended custom officers to open shipping containers when necessary and not merely to examine the exterior of cartons or boxes in which smuggled goods might be concealed.</p>
<p>During virtually the entire history of our country, whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile, it was been assumed that a lawful search of a vehicle would include search of any container that might include the object of the... of the search.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I... I think that--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Now, why isn't that applicable here?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --I think that it... actually, it's consistent with our position, because the statutes that Ross was talking about were the statutes from 1789 and 1790 that I was referring to earlier, and what they allowed was the customs officers to go on board the ships to mark things and to make their records and so on and so forth, and then the packages would then be opened by the customs officer, and the first Congress thought this was a very significant act, because not only did they require the customs officer to open up the packages, but they had to have two reputable witnesses, merchants outside the customs service, to observe those.</p>
<p>So that was a very significant event.</p>
<p>But nothing in those statutes allowed disassembly of vessels.</p>
<p>It, in fact, it did authorize--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, now, your... your... your position is... is... is any container, you're not just talking about gas tank, you say nothing can be disassembled.</p>
<p>So if I have some gizmo that is assembled and is not meant to be opened again, you say if I bring that across the border the customs agent can't look into it.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, they can look into it with all of the... the various abilities that they have.</p>
<p>If they have--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They can't open it.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --If they have reasonable--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They can't... they can't open it.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --If they have reasonable suspicion, they can.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, but without reasonable suspicion.</p>
<p>I'm--</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: No, I don't think they can open up the gizmo without reasonable suspicion, but they still have all of the abilities they have to bring to bear on that, all the... the experience, all of their technology, all of their ability to examine things.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: --I think I... I... I lost what you were saying when you started referring to the gizmo.</p>
<p>If... if I bring in... if I buy a valuable statue in Europe and I have it elaborately crated so it won't be hurt in transport, when it gets to New York, can they open the crate to see what's inside?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Yes, they can, and that would be consistent with the 1790 statute, which said that you could open up the packages.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: All right.</p>
<p>So the difference between the crate and the gas tank is, I take it, your concern that after they've put the gas tank back together, there may be some risk that it won't function or that the emissions system will be affected?</p>
<p>I mean, is that where you draw the line between the crate and the tank?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I think that the... the line that I'm drawing is... is the line that was drawn by the first Congress when they said that you can open up packages and they didn't provide any additional authority on board the vessels--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well--</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --to disassemble--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --Yeah, but you're... you're arguing a constitutional restriction here.</p>
<p>Your... your argument is not that Congress has not provided the authority.</p>
<p>Your argument is Congress can't provide the authority.</p>
<p>So what, it seems to me what Justice Souter is asking is, if Congress can provide the authority to uncrate the statue, what constitutional prohibition is there to uncrating the gas tank?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, of course, in their brief, the Solicitor Generals argued that that statute is... does go along with the constitutional protection, so I think that the fact that the same Congress that passed the Fourth Amendment had this narrow view of what you can open, packages with the two witnesses there.</p>
<p>And they were also obligated if there was--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but, I mean, we... we didn't have this problem in 1790 or 1799, and the question is, what is the difference in principle for constitutional purposes between opening up, disassembling my crate, and disassembling the gas tank?</p>
<p>And the only thing that I can think of is, based on what you've said so far, is the concern that maybe the gas tank won't work or I'll have to disclose it to a subsequent purchaser, or the emissions system will be hurt.</p>
<p>Do you have anything else to distinguish in principle between the... the uncrating and the opening of the tank?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well... well, yes.</p>
<p>There's also the notion of the... that was relied upon in Molina-Tarazon, the security of the individual who's in the vehicle, and there's also the--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, the security is... is the... is the concern that maybe the tank won't work or... or are you saying maybe... maybe the... it'll blow up?</p>
<p>Is that what you mean by the security?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Right, yeah.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<p>Well, the individual, I assume, is not in the car when they take the tank out, so we're talking simply about property damage.</p>
<p>When they uncrate the statue, they might knock the hand off, but they can still uncrate the statue.</p>
<p>What... anything else in principle between the two situations?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I think that crates are intended to be open.</p>
<p>If, you know, you packed it carefully and ultimately you intend to unpack it, so you intend to pack the... the crate.</p>
<p>I don't think it's reasonable though to disassemble a valuable piece of property that has safety implications--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So it depends on my intention?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I think what--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I intend the crate to be opened, but when I buy a gas tank I don't intend it to be opened?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Right.</p>
<p>I think that that's... that's... if there's--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But that's not the expectation of privacy test.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --No, I think it's... it's the property--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So this is a new test, I take it?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --No.</p>
<p>Soldal establishes that even if there is no invasion of privacy, there is still a Fourth Amendment intrusion if there's a seizure of property.</p>
<p>This is a meaningful interference with the... your enjoyment of the possession of your property.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but the distinction between the two cases, I take it, now is the intent of the owner of the property that is disassembled.</p>
<p>In the one case, the owner ultimately intends the crate to be opened up.</p>
<p>In the other case, he does not intend the gas tank to be opened up.</p>
<p>Is, is that it?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, I don't think it's a subjective test.</p>
<p>I think it would be... we're talking about reasonableness under the Fourth Amendment and--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, if that... it can't be that he doesn't... well, expected to be opened up.</p>
<p>If it's... if it's a container where things can be carried, one of the things that the Government said in its brief is that if luggage is free and then this will become the container of choice, and we know that in a very high percentage there have found drugs there.</p>
<p>So it is a container, we know it's been used as a container.</p>
<p>Why should it not be treated like any other container?</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, I think it's different from any other container because it's part of a vehicle that was never expected or intended by its designers to be taken apart in this manner.</p>
<p>But I would also say that there's been 15 years of history in which, you know, courts of appeals have applied Montoya to searches of property.</p>
<p>If smugglers were changing their patterns in response to those decisions, this... the Tenth Circuit rendered its decision 15 years ago, the Fifth Circuit rendered its decision 5 years ago.</p>
<p>The Government offered no evidence below that there have been changes in smuggling patterns based upon those courts' decisions applying a reasonable suspicion standard.</p>
<p>Yeah, but those... those cases it didn't involve gas tanks, if I understand correctly.</p>
<p>That's... that's correct.</p>
<p>They didn't involve gas tanks, but they involved vehicles, and basically the theory was is that if smugglers--</p>
<p>May I... may I ask you a hypothetical?</p>
<p>Supposing Congress passed a statute specifically authorizing gas tank searches and providing in the statute that after the search shall be conducted, the... there will be two people on hand, one, Mr. Goodwrench, and one Mr. Value Appraiser, and they would have to give a good certificate, both of them have to give a certificate that the value of the car has not been impaired by what has been happened, and if it has, the amount of value will be reimbursed immediately by the Government to the owner.</p>
<p>Would that be a constitutional statute?</p>
<p>--Well, I think that, you know, since ultimately we're talking about reasonableness, that would address some of the objections that I've made today, but I still think--</p>
<p>Would it... would it cure enough of them to be constitutional is the question?</p>
<p>--I don't... I don't think that it would, because I still think that that's beyond what the First Congress envisioned and that's a... our best guide to what the Fourth Amendment was intended to mean.</p>
<p>They didn't authorize the disassembly of the ships that were coming into port.</p>
<p>They didn't say that, you know, if you took two ship builders on board.</p>
<p>What they said was, you can take apart the packages, things that are intended to be opened, but you have to have two witnesses, and if it turns out that there's nothing in there, you have to... the customs officer would have to pay--</p>
<p>My hypo gave you your two witnesses.</p>
<p>--I... I understand, Your Honor.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If 85 percent of the people with the gas tanks that were searched have the contraband, what you're asking us to do is to protect the expectation of the other 15 percent.</p>
<p>I... I suppose that's the rule, but it... when the percentages get these high, it... it seems to me to put the exclusionary rule somewhat into question with reference to the border.</p>
<p>Suppose it was 95 percent.</p>
<p>Do we still have to protect the 5 percent of the people?</p>
<p>I mean, I guess that's the law.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, Justice Kennedy, there's no showing that adopting the rule that we're asking for would have any effect on the effect... effectiveness of the border searches.</p>
<p>There's no evidence offered below that, you know, the... if you deprive them of the ability to random searches that there will be even one more person who would get through.</p>
<p>So I think that if they--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, that works the other way around as well.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --Well, that's true, but it would still vest the absolute discretion across the border for any customs inspector for no reason at all to disassemble valuable property.</p>
<p>That's inconsistent with the history of the Fourth Amendment, it's inconsistent with the Nation's earliest statutes, it's even inconsistent with section 1461, which applies directly to entries from contiguous countries, and that--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, for... for no reason at all they can... they can conduct searches of... of the person, right, without any suspicion?</p>
<p>That's okay.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: --That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The Gucci shoes and everything else.</p>
<p>But somehow when you... when you reach this... this magical, what, disassembly of a vehicle, that that has some special constitutional status.</p>
<p>I... I find that quite implausible.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, Justice Scalia, I think that the importance is, is that it is very... we're asking for a standard that's... comports with what was adopted in 1789 and 1790, and the 1461 statute that's currently applicable talks about allowing the customs inspectors to look inside the vehicle by providing a key, not by providing a lift or providing tools, but by providing a key.</p>
<p>That's what's reasonable, that's what's routine, that's what's should be protected by the Fourth Amendment.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Do you... do you question the... the Government gave an example, I think from fiscal year 2003.</p>
<p>They said 300 fuel tanks were disassembled and put back along the southern border without incident, that is, no explosion and no malfunction in the vehicles for the travels.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I don't have any additional information about those.</p>
<p>I mean, I don't know if that violated those individuals' leases, whether they felt a lack of security as was discussed in the Molina-Tarazon case, whether their warranties were any way affected, they simply don't have any information.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But it would be a graver concern than a warranty if the vehicle might blow up after.</p>
<p>And... but there doesn't seem to be any evidence of that, that there's a high risk that that would occur.</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: Well, there's no risk... apparently there's no evidence of anything blowing up, but that doesn't mean that individuals' security was implicated as they drove away from the border knowing that their valuable property had been altered by unknown government functionaries.</p>
<p>If the Court has no further questions, I'll submit.</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Hubachek.</p>
<p>Ms. Blatt, you have three minutes remaining.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: Thank you, Mr. Chief Justice.</p>
<p>Justice Kennedy, you asked about the 25 percent figure, and in the appendix to the petition at 12a, that 25 percent figure relates to vehicle drug seizures, so what customs meant by seizures was from the vehicle.</p>
<p>That wouldn't include stuff found in someone's pockets.</p>
<p>Justice Breyer, you asked about how we track searches.</p>
<p>There's apparently a nationwide computer tracking system where customs tracks all of their searches, both positive and negative, and when there's a positive report search, it's called a seizure.</p>
<p>When there's a negative, it's called an incident report, and the agent is in fact required to document what his reasons were... were for conducting the search, and the supervisor must read that, and if there was a problem developing about improper use of his resources at the border, the agent would be either trained or disciplined.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Are those public documents?</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: I would doubt it.</p>
<p>I don't know, Justice Kennedy, but given that it includes the reasons for conducting the search, but I... I just don't know.</p>
<p>I know it's called the TECS, but I don't know whether that's public or not.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Is it public that such a thing exists?</p>
<p>Is there--</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: I've just made it public.</p>
<p>[Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --But... but... I mean besides your word for it.</p>
<p>I trust you implicitly, but I'd like to be able to cite something other than you.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: [Laughter]</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: I... I'd have to go--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay.</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --on the Internet or something like that, Justice Scalia.</p>
<p>Rebuttal of Steven F. Hubachek</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I don't want to cut you off if you had something else to say.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, that was--</p>
<!-- steven_f_hubachek--><p><b>Mr. Hubachek</b>: I just want... I do think it's correct though, is it not, that what really we're asked to decide is whether you have the power to make random searches?</p>
<p>I know that they're costly and unlikely, but I think it... it's... it's not unlikely in today's world that you might decide you want to search every one-hundredth vehicle or ever twenty-fifth vehicle to let the world know that even if they hire Ronald Coleman they might get searched.</p>
<p>That is correct, isn't it?</p>
<p>Rebuttal of Lisa Schiavo Blatt</p>
<!-- lisa_schiavo_blatt--><p><b>Ms Blatt</b>: --That's correct, Justice Stevens, and it's quite conceivable if the country ever went on a red alert that the commissioner of customs might say, or if there was some vague intelligence about smuggling in pick-up trucks, they might want to do very extensive searches of pick-up trucks.</p>
<p>Now whether they'll actually ever come to that I hope not, but yet, this... the... the border power... the power to conduct a border search is one without any particularized suspicion.</p>
<p>Thank you, Mr. Chief Justice.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Blatt.</p>
<p>The case is submitted.</p>
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The Oyez Project </div>
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Fri, 09 Jan 2009 14:49:07 +000056809 at http://www.oyez.orgIllinois v. Lidster - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2003/2003_02_1060/argument
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Case:&nbsp;</div>
<a href="/cases/2000-2009/2003/2003_02_1060">Illinois v. Lidster</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Gary Feinerman</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument now in No. 20... 02-1060, Illinois v. Robert S. Lidster.</p>
<p>Mr. Feinerman.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Thank you, Mr. Chief Justice, and may it please the Court:</p>
<p>A Lombard informational checkpoint was designed to find witnesses to a specific known crime.</p>
<p>The principal question here is whether the checkpoint is per se invalid under the Fourth Amendment or whether it's governed by the Brown balancing test.</p>
<p>Now, the touchstone of the Fourth Amendment is reasonableness, which generally is measured by balancing the Government interest advanced by a seizure against the intrusion on the individual and this Court has held that road... roadway checkpoints, including those that serve a law enforcement purpose, are governed by the balancing factors set forth in Brown v. Texas.</p>
<p>Now, in Edmond, an exception was carved for a certain category of law enforcement checkpoints, those that are designed to advance the general interest in crime control.</p>
<p>The Court held in Edmond that crime control checkpoints are not subject to a balancing analysis, but rather are per se invalid.</p>
<p>The Illinois Supreme Court in this case held that informational checkpoints, including the Lombard checkpoint here, fall within that general crime control exception.</p>
<p>That was an error.</p>
<p>Per se invalidity under the Fourth Amendment is very strong medicine and ought to be reserved for exceptional circumstances, and those circumstances...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, I suppose we'd have to decide here not only whether it was per se invalid, but whether it was reasonable under any other standard.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That's correct, Justice O'Connor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And let me ask you, is it often that roadblocks are set up just to get information like this?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I... I would rely on the amicus briefs submitted by the Illinois Association of Chiefs of Police and the Major Cities Chiefs Association, and they... they have informed the Court that roadblocks are not used frequently, rather they are used judiciously in order to solve certain...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: This was a little odd.</p>
<p>It was a week later?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: It was a week later, but there was a very good reason why the checkpoint was set up at that particular place and at that particular time.</p>
<p>There was a fatal hit-and-run accident at about midnight on a Friday night.</p>
<p>There were no witnesses, at least pedestrian witnesses, and the Lombard police reasonably concluded that, because people's driving habits, or at least some people's driving habits might be regular, that some of the drivers that were there on the night in question would also be driving the same route at the same time at the same place one week later, and we...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: The... the... you... you said that they had to be used judiciously and that's a good word, but our... do our precedents in this area generally say, well, we defer to the good judgement of the police, they won't use them too often.</p>
<p>The Illinois Supreme Court said, oh, if we allow this, we're going to have roadblocks every other... every day, every other street and in part that's hyperbole, but on the other hand, it does caution us that there should be some limiting principle and I just don't know if our precedents would support us in adopting your word, oh, if it's used judiciously.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Well, it's used judiciously for a number of reasons.</p>
<p>One are the resource limitations.</p>
<p>These kinds of roadblocks are very resource-intensive.</p>
<p>There's also the prudential limits that the police departments place upon themselves.</p>
<p>They don't want to appear too intrusive to the public and this is a... a minor inconvenience and the...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What if that isn't enough?</p>
<p>What if they... they're squandering their resources?</p>
<p>You have a dumb police chief who's... who's using most of his resources in fruitless roadblocks.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What do we do then?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Then the courts step in and apply the Brown reasonableness factors.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, what... that's what I'm asking.</p>
<p>What makes this reasonable that wouldn't make other ones reasonable?</p>
<p>What would be unreasonable?</p>
<p>A... a general roadblock asking about general crime... you know, sir, have you seen any crime committed in the last 6 months, something like that?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Would that be...</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That would be closer... that would be closer to the situation that was presented in Edmond, although it wouldn't... it wouldn't present one of the hallmarks of what we believe is a general crime control roadblock, which is that it's the goal of the police to incriminate the motorists as opposed to simply seek information.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, it wouldn't... it wouldn't come within that, but you think that that would... would be invalid even though you would support these informational roadblocks in some circumstances?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That... that question, of course, isn't presented here, but I... I...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No kidding.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I understand, but our... I... I suppose we would say that such roadblocks should not be declared per se invalid under the Fourth Amendment, but rather they ought to be subject to the Brown balancing test.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You going to answer my question?</p>
<p>Would that one be invalid or not?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: It would depend upon the circumstances.</p>
<p>We could...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I gave you the circumstances.</p>
<p>It's a general roadblock.</p>
<p>They stop everybody who comes along simply for the purpose of asking, sir or madam, have you seen a crime committed within the last 6 months?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I think there... there would be...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What other circumstances do you need?</p>
<p>Whether it's raining or not?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: No.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Now, can you give me...</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I can't...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: a yes or no?</p>
<p>Is that good or bad?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: It's, in my most instances it would be bad, but...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Okay.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I... I don't know if we could foreclose the possibility that there might be some circumstances were such a roadblock would be reasonable.</p>
<p>For example, let's assume that in... in some area of some city that there's just rapid lawlessness because of a blackout or whatever and there are hundreds of crimes committed and the police might want to canvass the neighborhood but nobody wants to be seen talking to a police officer.</p>
<p>So in that instance perhaps a roadblock would be set up where the police would hand each motorist a piece of paper saying, you don't have to talk to me now but here's a number, and if you know of anything that had happened that was unlawful, please feel free to give us a call, we'll maintain our confidentiality.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, what... what about...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Mr....</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: a road... roadblock that you find in perhaps some smaller towns where the police just very briefly stop you and ask you to contribute to the police boys fund.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I'm... I'm not sure that would be a... a crime control roadblock.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I don't think it is.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That... that perhaps would be valid and now it would be a better practice, of course, if the police were to simply approach cars that were stopped at a stoplight or a stop sign or a tollbooth.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If you had that kind of a roadblock and one of the drivers just about ran into the policeman, do you think that the court... the courts would entertain the argument that, well, the initial stop was invalid, therefore running into the policeman... it cannot be grounds for the arrest?</p>
<p>I... it's just a clumsy way of asking, I guess, whether... whether or not there is any kind of a causation break here, causation link problem.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Yeah, we... that... that argument perhaps could been made below but it wasn't, and as this case comes to this Court, the assumption is that if... if the roadblock were invalid under the Fourth Amendment, then the subsequent arrest would be as well.</p>
<p>Even though the... the... Mr. Lidster almost running into the police officer did provide cause, that question's not presented here.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Mr. Feinerman, may I go back to your own hypothetical of a moment ago in which this crime has been committed, people don't want to be seen talking to the police, so the police might set up a roadblock under those circumstances.</p>
<p>What about the same situation in which the police say... and I suppose it would be reasonable in your hypo that they need to talk to a lot more people than simply the ones who were driving in cars... on your reasoning, could the police, in effect, cordon off sidewalks so that any pedestrian coming down the sidewalk would have to pass through sort of a chute at the end and could not get through with stopping to talk to the police officer and answer questions in order to get through?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: No, Justice Souter, because pedestrians have greater Fourth Amendment rights than motorists.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, they... they... they do in the sense that we... we recognize certain rights to stop the motorist because of the regulated nature and the highly dangerous nature of the... of the driving enterprise.</p>
<p>But here we're talking about stops which bear absolutely no relation to the regulation of motor vehicles.</p>
<p>The only reason for the stop in the case that you're defending, and the only reason for the stop in my hypo is that there may be an opportunity to gather evidence from a citizen who won't come forward but would answer a question.</p>
<p>So it seems to me that the difference between cars and pedestrians has nothing to do with the... the... the answer to my question.</p>
<p>Am I wrong there?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I believe so, Your Honor, with respect.</p>
<p>It would be permissible with motorists.</p>
<p>It wouldn't be permissible with pedestrians because motorists do not have the same expectation of freedom of movement that pedestrians do.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but the... no, but the justification for interfering with their freedom of movement is not the justification that's involved in this stop.</p>
<p>You're not looking for impaired motorists.</p>
<p>You're not checking licenses and registration.</p>
<p>You're simply stopping motorists because they might have seen a crime, and in the extension of your hypo I'm talking the pedestrian who might have seen a crime or have some evidence of it.</p>
<p>They're in exactly the same situation.</p>
<p>If you can stop the cars, why can't you stop the pedestrians?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Again, I... I just have to rely on my prior answer.</p>
<p>It's because this Court has held that in certain... in certain situations, suspicionless roadway stops are permissible, or at least subject... potentially permissible and subject to the Brown balancing test.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Does one have a... in... is it... a greater sense of privacy walking down a main thoroughfare than being in a car?</p>
<p>I understand the distinction between a home or an office, but you're out there on the street and the police could make... could... the police could go to any particular pedestrian and say, could you tell me if you know anything about X crime that was committed in this neighborhood and the police could do that?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That's correct.</p>
<p>The police can walk up to any pedestrian and ask questions and that's not a seizure under the Fourth Amendment.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Can they make the pedestrian stop?</p>
<p>I mean, I'm walking along, the police says, excuse me, sir, can I ask... I say, no, I'm too busy, and I keep walking.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: No.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Can they arrest me for keeping on walking?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: No.</p>
<p>That's Brown v. Texas.</p>
<p>The police cannot do that, but...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So why can they do it with a car?</p>
<p>Is that what happened here?</p>
<p>Suppose this car were in first gear as it cruised, you know, rolled up to the roadblock and the same thing happened, the policeman said, I want to ask you, you know, sir, I'd like to ask you a question.</p>
<p>I'm sorry, I'm too busy, just keeps rolling on through.</p>
<p>Would... would he have been arrested in this roadblock?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: If... if he's... if he rolled on through and... or... or if he stopped and said, I don't like... I don't want to...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: He didn't stop at all.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: He kept rolling at a very slow speed and he just told the policeman, I'm sorry, I'm too busy.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: The... the record doesn't reflect whether any such instances happened and that would be a close...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: He'd be arrested, let's... he'd be arrested pretty...</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Perhaps he would be arrested for not following...</p>
<p>[Laughter]</p>
<p>Perhaps he would be arrested for not following the police officer's...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, now...</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: instruction, but really the...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do... do you think he could do the same thing with a... with a pedestrian?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: No, no.</p>
<p>And that's Brown v. Texas.</p>
<p>Pedestrians cannot be seized for this purpose and that this...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, now, in the Edmonds case, the Court opinion said that under exigent circumstances there could be some kind of a... an appropriately tailored roadblock.</p>
<p>Do you take the position that trying to find a witness was some kind of an exigent circumstance here?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: No.</p>
<p>Our position is not that there are exigent circumstances.</p>
<p>Our position is that this is not a general crime control roadblock.</p>
<p>A crime...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: When you make your balance under Brown, do you... does the time that it takes to answer the officer's inquiry the relevant factor or the time you have to wait in line if there's a big... it's a crowded street, you know, they... you cause a traffic jam, you have to wait 20 minutes?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: It's our position that it's only the time that... of the police-motorist encounter.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So that even if in fact the delay caused the... a bunch of people a half hour's delay, that would be irrelevant?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: In... in our... we... we... if... were that question presented, we would say that that's irrelevant because that's simply endemic.</p>
<p>That's just a byproduct of driving.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It's a byproduct of the seizure of one person that you got to wait... wait in turn to be seized yourself.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That's true, and... but what's... the reason why... the police don't want there to be a line.</p>
<p>The police just want to talk to each motorist as they're driving by.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: No, but if... if you're on a busy street, as they were in... in... I forget which suburb of Chicago this was...</p>
<p>Lombard.</p>
<p>in Lombard, you're gonna... you're gonna tie up traffic for a while.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Yeah, I should mention... I should mention that Mr. Lidster at his trial, at page 47 of the transcript, testified that there were only three cars in front of him.</p>
<p>So he was stopped really for... at most only a minute, which is permissible.</p>
<p>But were there a case as in your hypothetical where a motorist were stopped for a half an hour, we would still say that that waiting time doesn't count because that's really more a function of the number of vehicles on the street and it's not really... it was not intended by the officer that there be this backup.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I... I suppose part of the reasonableness inquiry has to be what alternatives were available to achieve the same objective.</p>
<p>And why couldn't the police just have had a big sign on the side of the road, one of those, you know, illuminated signs that they have now, which said, you know, please help us, looking for hit-and-run...</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: It...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: last week, something like that.</p>
<p>And then those people who are willing to cooperate could pull over and cooperate and those... those who want to have nothing to do with it can keep on moving.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That would be possible, but this Court has said very clearly that a less restrictive means test is not to be applied under the second Brown factor.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I'm not applying the least... least restrictive means test, but surely one of the... one of the factors in determining whether this was reasonable is whether you could have done... achieved the same objective in... in some other manner.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That's correct.</p>
<p>That is a factor and... but these kinds of signs or billboards, it isn't like it just says, drink Budweiser or fly United Airlines, there's a lot of information on there, and if these cars are...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: It might distract drivers if... if a big sign on the road... on the highway when you're supposed to be looking at the road.</p>
<p>That might be a reason, but there's a... there's an aspect of this, you've repeated the police many times, and one of the worrisome things of this set-up is all you need is a crime, and in major metropolitan areas there are crimes, multiple crimes every day.</p>
<p>Who makes the decision?</p>
<p>The local police chief.</p>
<p>And then after some, you can get into court.</p>
<p>It's... it's not like the law dictates this or even the State's Attorney General, but it's in every town, the local police chief that may have just a range of views about using roadblocks.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: That... that's what the Brown balancing test is there for.</p>
<p>It's there to determine what kinds of stops are reasonable and which one aren't.</p>
<p>Now, if there are some circumstances where we can imagine that we'd want to have this kind of informational checkpoint, then a... and that's really the principal question here.</p>
<p>There ought not to be a per se rule, because there are some situations, and we submit that this is one of them, where it makes perfect sense for the police to set up a roadblock because the physical evidence recovered from the scene was not sufficient to identify the perpetrator, and the only witnesses to the crime were fellow motorists, and there was really only one way our... there wasn't only one way, but this was a very good way of getting at them.</p>
<p>And if there are circumstances where we can imagine that we'd want to enable the police to solve crimes in this manner, then a per se rule is invalid.</p>
<p>It ought to go through Brown balancing.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You... you mentioned that this is a good way to get at the people you want to get to.</p>
<p>Is there any indication that there... anything of value was obtained in the investigation of this crime in this particular roadblock, or do you have any information across the... from... from broader statistics across the nation about the effectiveness of doing this?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: I have no statistics from across the nation and I'd have to go outside the record to answer your question.</p>
<p>The Lombard police asked the local news to actually cover the roadblock, which they did, and somebody who was watching the local news realized that a gentleman in her apartment complex had recently had damage to the right headlight of his F-150 and called...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: If... if the police had... if the police had asked the local news to... to broadcast a 2-minute clip of a police officer saying, we're having trouble finding the perpetrator of this crime, please come forward, wouldn't that have gotten the same result?</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Well, we have to...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They wouldn't have done it, but I mean...</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: They may not have done that.</p>
<p>If... if there are no further...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: a roadblock is much more fun to cover.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: Justice Scalia makes a good point, and I'd like to reserve the remainder of my time.</p>
<p>Argument of Patricia A. Millett</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. Feinerman.</p>
<p>Ms. Millett, we'll hear from you.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The reason a news story covering a... a hit-and-run fatality, as in this case, is not as effective for a number of reasons.</p>
<p>First of all, statistically, the majority of Americans don't watch local news.</p>
<p>More importantly, there is significant value as... as has long been recognized when police deal with pedestrians and approach them, seeking their assistance in solving crimes, there is significant value to having a police officer approach someone in a one-on-one manner in an effort to solve a crime.</p>
<p>First of all, the... the approach impresses on people, who are otherwise very busy, the importance of the matter before them and that this may be worth devoting their time.</p>
<p>The police officer's one-on-one approach can advise the person, in addition, that what you saw might be significant even though you didn't see an accident.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But can you stop the person?</p>
<p>I mean, put it in a pedestrian context, do you think a police officer can insist that the person stop, stand there, and listen to his pitch?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: No, absolutely not, Justice Scalia.</p>
<p>There is a long... just there is a long historic distinction between cars and homes, there's a long historic distinction between cars and pedestrians, and the reason... as a practical matter, you have to have a very, very brief seizure here to protect the life and limb of the police officer while he tries to make this approach.</p>
<p>That's not needed when you're approaching pedestrians.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why... why does the distinction... you've mentioned it and... and Mr. Feinerman mentioned it... why does the distinction between cars and pedestrians apply in a case in which the... the justification for making that distinction, regulation, a risk of impaired driving, does not apply?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: What... what is relevant is what this Court has long recognized is... is the difference in your reasonable expectations of freedom of movement between people in cars and pedestrians on the sidewalk.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but my expectation of freedom of movement in the car is that, yeah, the police can stop to... for a sobriety checkpoint and I'll assume they can... they can stop to... to check my... my license and the registration of the car, but I also assume that they can't, you know, barring today, the result of today's case, I... I'm assuming that they... they can't stop me for... for other reasons, barring some really exigent circumstance.</p>
<p>And if that expectation is reasonable, and I think it has been at least up until today, then I think my expectation is... is the same as the pedestrian's expectation, barring the... the regulatory authority of... of exercising the regulatory authority, which is not in... in issue here.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Justice Souter, the essential command of the Fourth Amendment is reasonableness, and there's nothing in the Fourth Amendment that says stops for sobriety or stops to see if you have any aliens in your trunk are inherently reasonable and nothing else is.</p>
<p>It's a balancing test, as this Court has long recognized, and an important part of that balance is the expectations that the individual brings to it, and the expectation of the individual behind the wheel is that there are a number of times that I will come into contact with police officers and I will need to stop, I'm highly regulated, I'm highly restricted, and I am engaged in a privilege of driving on the public roadways.</p>
<p>Walking is not a privilege.</p>
<p>Driving on the public roadways is and so the question...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You're... you're saying that because they might have observed or... or observed evidence in the exercise of their privilege that that would be a regulatory basis for stopping them in the cars, whereas there wouldn't be any such basis for the pedestrian?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: The regulatory need for it is that there's... you have a very common police practice here, and one that we expect the police to do if a... a fatality has been committed is try to find witnesses who were there at the time.</p>
<p>The only way that principle can work...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And... and we understand that when... when there's something pretty contemporaneous between the stopping and the... and the accident.</p>
<p>That's what I had in mind with exigency.</p>
<p>But do we... is... is it such a common practice that a week later or two weeks later...</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: It is extremely common for these types of informational checkpoints.</p>
<p>There's two different types of checkpoints.</p>
<p>There is the one that's trying to catch the person right after the crime's been committed.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yeah.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: But the witness checkpoints are quite routinely done, either 24 hours, or very routinely, a week after, because people are creatures of habit and they tend to drive the same roads at the same time of... the same days, and so it's very common... a number... a number of Federal checkpoints have been done exactly like this.</p>
<p>They've been done a week after a child's been abducted.</p>
<p>In the Elizabeth Smart case, it was a week later.</p>
<p>Federal checkpoints that I'm familiar with were done exactly... exactly a week later, and you try to go at the exact same time, because that is eminently sensible for police officers.</p>
<p>If you want to look for the witnesses, you want to find people who are most likely to have been there at the same time.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Have they been successful?</p>
<p>Is your knowledge of these things profound enough that you can say how successful they've been?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I... I can't give you...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do you know of any that have been successful?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Yes, absolutely.</p>
<p>The... the Park Police did one... the Federal Park Police did one here in the Washington, D.C. area a couple years ago that found four eyewitnesses to a hit-and-run fatality.</p>
<p>But also, the ability to measure success here... we're not talking about immediately removing a drunk driver from the road or actually finding the alien... solving... you're successful if you defined you solved the crime, and solving a crime is not a linear project.</p>
<p>It involves a lot of information coming in from a different...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you couldn't... you couldn't do this to try to get the perpetrator.</p>
<p>That would clearly be Edmond, and there seems to be something odd about saying, police, you can't have a roadblock in a neighborhood where you think that it's likely the suspect is living, but you can if you say what you're looking for, it's not the suspect, but witnesses.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Justice Ginsburg, I... two responses.</p>
<p>First of all there are... Edmond leaves open that there are at least some circumstances when you can do this... maybe to approach is exigency... but where you can do these types of checkpoints to catch someone.</p>
<p>The language there was a fleeing dangerous criminal who was going by particular routes, so it's not... that doesn't seem to be foreclosed in all circumstances.</p>
<p>But the reason it makes a big differences for purposes of Fourth Amendment principles, there's actually three reasons why looking for witnesses is better and should be more consistent with the Fourth Amendment than what... the issue in Edmond.</p>
<p>And that is, there... there's a difference between, just a practical difference, between police taking action, seizing people first and looking for a crime to go with them, which is what was going on in Edmond, or having a specific crime and looking to solve it in the most sensible and reasonable manner that police officers do, and that is looking for witnesses.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, following Justice Ginsburg's question, which is the easier of the two cases?</p>
<p>The one we have here or a hypothetical case in which they have a description of the hit-and-run driver and they stop everybody to look in the car to see if the driver meets the description?</p>
<p>Which is the easier of the two cases to sustain?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Assuming that this is not... it's not right after the crime that I have the description...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: A week later, everything else the same.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I think this Court's... I think both of them are different from Edmond, but I do think this Court's doctrines establish why the witness approach is... is more... is less intrusive on Fourth Amendment interests for... for three reasons.</p>
<p>One is that there is a self-incrimination component, self-protection component to the Fourth Amendment and that has been very important in the drug testing cases.</p>
<p>It was central to the resolution of the Ferguson decision and mentioned in camera...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I... I wonder if you'd answer Justice Kennedy's question.</p>
<p>Which is the easier case?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I... I'm...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You don't know?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: oh, I'm sorry...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Pardon me?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: We would like to have them both sustained, quite frankly, and we don't think they're... they're exactly covered by Edmond...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes, yes, but which is more consistent... which is easier to say is consistent with the Fourth Amendment?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: There...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I would just... I'm mixed up with easier because I don't... which is... the two cases that he gave, in which do you think it's easier for you to win your argument?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I... I think the witness one is easier for three reasons, and one is because the Fourth Amendment has this self-protection principle, which is not implicated when you're... you're looking for witnesses.</p>
<p>The checkpoint does not...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: In other words, this case is easier?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Yes, yes, the witness checkpoint, the looking for information checkpoint.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: All right.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I got mixed up...</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I'm sorry if I'm not...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: This case is easier?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Yes.</p>
<p>This case is easier, but... but there's... there's two other reasons besides the self-protection principle.</p>
<p>One is, as a practical matter, one of the balancing tests... factors... in Brown v. Texas is the level of anxiety.</p>
<p>When a police officer approaches you and says... even if it's permissible... I want to know if you're doing something wrong.</p>
<p>Do you not have a driver's license?</p>
<p>Are you drunk?</p>
<p>That's... there's a little more anxiety there when a police... than when a police officer comes and says, I would like your help, someone was killed here.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And what's the third reason?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: And... and the third...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The Fourth Amendment is an anxiety thing?</p>
<p>My goodness.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: That is a factor but...</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: It's all... it's all very... sorry.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: that... that cuts against you in this case, though, doesn't it?</p>
<p>This was at midnight.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: No, no.</p>
<p>Part of the Brown v. Texas balancing factors is... is of... one of the things that's been mentioned is the level of anxiety, and the reason that you don't have roving stops but you're allowed to have checkpoints is when you see other people being stopped around you, even if they want to know if you're drunk...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I have a pending question about the... the third reason.</p>
<p>I... what's the third reason?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: The third... thank you... the third reason is... is a... is a... there's a sort of a practical limitation on the use of these checkpoints when police are not allowed to use it to do their run-of-the-mill business.</p>
<p>Their job is to find crimes and criminals.</p>
<p>Edmond was a checkpoint to find crimes and criminals that we didn't know about, when instead all that's being done here is this is an adjunct to a... adapting to the roadway context the normal investigative processes of police officers.</p>
<p>You... you don't have that abuse, and the same way...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So this is a built-in limitation on the frequency of its use?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: It is, and Justice Kennedy, you also asked about doctrinal limitations in this Court's cases, and in Atwater v. City of Lago Vista the exact same argument was made dealing with misdemeanor arrests.</p>
<p>And this Court's decision there specifically relied upon the good sense and political accountability of police, for the same reason that we know police don't arrest for every crime and infraction that... vehicle code infraction that they find.</p>
<p>A lot of police chiefs are arrested and checkpoints are a great equalizer, especially these kind because the location is dictated by where the crime occurred...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Arrested or elected?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What... did you say arrested or elected?</p>
<p>That a lot of police chiefs are...</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Oh, I hope I said elected.</p>
<p>[Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I thought you said arrested.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Thank you, Mr. Chief Justice.</p>
<p>Argument of Donald J. Ramsell</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Millett.</p>
<p>Mr. Ramsell, we'll hear from you.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The mass, suspicionless seizure of innocent citizens for the purpose of investigating ordinary criminal wrongdoing without exigent circumstances is a violation of the Fourth Amendment, and Indianapolis v. Edmond is the controlling precedent.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, that sounds a little colorful, but... but in my own mind I'm thinking that this is asking people to help with crime investigation and to spend 10 seconds listening to the request.</p>
<p>Now, it's... I was delayed 2 hours... not 2 hours, but like 2 minutes anyway, or 3 minutes, this morning coming in, for the last couple of days because they had some tree pruning equipment, all right?</p>
<p>So maybe they could put that on the sidewalk and not delay me, but I don't mind.</p>
<p>I did actually mind, but I mean...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: but... you see, it's not... what their argument is, and that's, at least for me, what I'd like you to address, is this is not much of a... of a demand on people to stop for 10 seconds when they're trying to find out somebody who killed someone and... and we just want you to listen for 10 seconds.</p>
<p>Now, why... why is that such an unreasonable thing for the police to ask the public to do?</p>
<p>Nobody has to take the flyer, they don't even have to help.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, Justice Breyer, by definition this is a seizure.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I... I don't care about the... I'm asking you... I understand... I'm asking you why it's unreasonable.</p>
<p>That's the word in the Fourth Amendment and I tried to make it as... as reasonable-sounding as I could.</p>
<p>Maybe somebody else could do better, but I want your response to my effort to make this sound very reasonable.</p>
<p>That's what I'm interested in, your response.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: It remains unreasonable for a number of matters.</p>
<p>It's the aggregate of the circumstances then by which other innocent persons could be seized.</p>
<p>It's the fact that the gravity of the public concern in this particular event is far less than the reasonableness... reasonableness factors that have been used in Sitz.</p>
<p>It's far less than the immigration factor that was found in Martinez v. Fuerte.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I don't really want to hear cases so much.</p>
<p>I want to hear in common sense why this isn't a reasonable thing to do.</p>
<p>I'm not saying you even have to convince me to win your case, I'm just saying that for... I'd like to know why, in ordinary, common-sense English, this isn't the most reasonable thing in the world?</p>
<p>Now, I'm... I'm now overstating it so you'll be sure to give me an answer.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: It's midnight.</p>
<p>You're on a road where you do not expect to be confronted by a police officer.</p>
<p>You're waiting in line for several minutes as various other cars are evidently being interrogated, some are being transferred to secondary staging areas.</p>
<p>The anxiety builds and you arrive at the front of the roadblock to be questioned about where you were last week, personal indications, what have you seen?</p>
<p>You feel compelled to answer.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I didn't think that was the evidence.</p>
<p>I thought they were given a flyer saying if you... read this and see if you observed anything that could help us find the hit-and-run driver.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Detective Vasil testified that they were stopped, given a flyer, but also asked if they had been in the area last week and if they had seen anything unusual.</p>
<p>That second phase was relatively interrogational, although field interrogational.</p>
<p>Nevertheless, it is somewhat intrusive on what are considered some of our privacy...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, suppose that there is a roadblock but the only purpose of the roadblock is the police are stopping people to see if they'll contribute to the police boys fund.</p>
<p>The same thing... exactly the same thing happens with that roadblock has happened with your client.</p>
<p>He comes up, almost hits the policeman, smells alcohol on his breath and so forth, he's charged with drunken driving and is convicted.</p>
<p>Does he have a Fourth Amendment claim?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, Mr. Chief Justice, it would be a seizure, so the Fourth Amendment is implicated.</p>
<p>However, applying the Edmond analysis, the programmatic purpose of that seizure not being in the investigation or detection of crime, I would submit it would not be a violation of the Fourth Amendment.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: So they can hold him up for 2 hours if they're collecting for the police boys fund but they can't hold him up for 10 or 15 seconds if they're trying to solve a crime?</p>
<p>That doesn't make any sense.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Or hold him up for no reason at all, just for a lark.</p>
<p>Hey, let's hold up a bunch of people.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You... you say that passes the Fourth Amendment test but if... but... but this very reasonable investigation does not.</p>
<p>That can't be right.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I... I would submit, Justice Scalia, that if you were to stop a person and seize them for no reason whatsoever that that would not survive a Fourth Amendment analysis.</p>
<p>Ten to 15 seconds to deliver some funds and put them in a can would certainly be reasonable for that beneficent, non-crime control purpose.</p>
<p>Two hours would certainly exceed...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Are you saying it would be okay to have a roadblock to collect for the policemen's benevolent fund?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Compulsive collection would be questionable.</p>
<p>That would seem to be a tax.</p>
<p>[Laughter]</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I think if we endorsed...</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: But we do...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: your view that they can stop for the chief just as a purpose, there's going to be massive change in the way these organizations raise money.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: It... it is often difficult to say no when... when a fireman is seeking some funds.</p>
<p>However, it is certainly not the detection or investigation of the crime, and the analysis that would take place there would be different, and certainly 2 hours to put money in a can would suggest that the scope and duration of that stop was far beyond what was reasonable.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Maybe... maybe your response to Justice Breyer's question... I'm not sure that reasonableness for Fourth Amendment purposes is the same as reasonableness in general.</p>
<p>Do you think it would be... in general, if you're not talking about the Fourth Amendment... an unreasonable thing for a policeman to knock on your door and say, excuse me, sir, we're investigating a crime, we really need your help, do you mind if I... I come in and ask you a couple of questions just to help us solve this crime?</p>
<p>Do you think that's reasonable in... in... in a sense?</p>
<p>I guess it is.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: It is considered a voluntary encounter to the extent that if you choose to open the door and engage in that conversation the Fourth Amendment isn't even implicated there.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, the person says, unreasonably says no, and the policeman comes in anyway.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That would be a violation of the Fourth Amendment.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Even though it isn't really the policeman that's being unreasonable in the general sense.</p>
<p>It seems to me it's quite unreasonable for the homeowner to refuse to cooperate at all with the police in the... in the solving of a... let's assume it's a major crime.</p>
<p>That seems to me unreasonable, but even so, the policeman is not allowed to come into the home.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That's correct, Your Honor, and there's the difference between the voluntary consensual encounter and what we have in this case was clearly involuntary.</p>
<p>They even had an officer...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And so also here.</p>
<p>It might be very unreasonable for the person not to want to cooperate, and it might be quite reasonable for the policeman to seek the cooperation, but that doesn't necessarily answer the Fourth Amendment question.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I would suggest that the fact that an innocent motorist would feel that he or she was unreasonable by not cooperating suggests the compulsive aspects of this scenario, make it more of a violation of the Fourth Amendment, and more unreasonable to that extent.</p>
<p>One...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Ramsell, did I understand your argument to be that if the crime had been a child abduction, that this kind of roadblock to try to get evidence would be permissible?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: In... in a general sense, yes.</p>
<p>Of course, there would be other factors involved, but child abductions generally fall within the exigent circumstance analysis.</p>
<p>Clearly there would likely have to be further evaluation of the facts behind why they felt that...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, why if... if it's the danger involved and wanting to save a life that we hope is still in being, why isn't the same thing if you're trying to get evidence about a hit-and-run person who kills people on the highway?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, first off, the child abduction is a continuing crime, to the extent that the need for action in order to prevent the passable future or immediate harm to that child, makes that an exigent circumstance by itself.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So you think this would be different if this was a serial hit-and-run killer, right?</p>
<p>He does one a week.</p>
<p>Then... then you think it'd be a different situation and maybe they could conduct the... the roadblock.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, as we had in Sitz with the imminent hazard of drunk drivers, if there were such a thing as a serial hit-and-run driver, the imminency, the exigency would be suggested within that hypothetical, and so I believe that it would be more reasonable under that circumstance, but what we...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And what about a rape murder that... you know that that's not just a hypothetical case?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That had recently occurred?</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: A rape murder recently occurred and the police set up a roadblock to get evidence.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Again, if there was... if it was very fresh, and the more fresh it is the more reasonable it tends to become under a simply an exigency analysis, the fresher the crime the more believability...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So would this... would this case have been different if it had been the next day rather than a week later?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: If they had some independent evidence to suggest that the person was still in the area, that may have been a different set of facts.</p>
<p>Commonwealth v. Burns was an example of a informational roadblock where they had independent evidence to believe that the murderer was still in the area.</p>
<p>I believe that was 2 days later.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So if you need a little... if you have a little evidence, then you can seek more.</p>
<p>But if you had none, you can't try to get a lead by this technique?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Justice Ginsburg, I believe the exigency of the circumstances would certainly authorize more... a possible information roadblock under those circumstances.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Did this... is it the case that in this very situation we're talking about it led to information about the person responsible?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Justice O'Connor, my understanding is that the roadblock itself was entirely ineffective.</p>
<p>It had zero effectiveness in seeking to obtain information regarding this event.</p>
<p>In fact, I believe that we've just heard that it was the television which led to some information, which is a standard police practice, does not implicate the Fourth Amendment, does not require any seizure of innocent persons...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yeah, but it requires a roadblock.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I believe that in the television context there's no roadblock at issue and no one's even compelled to watch the television...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but maybe television won't cover just a blurb put out by the police where they will cover a roadblock.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That may or may not be true, Your Honor, but there are...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Nothing duller than watching a wall of... of wanted posters, you know, and now, for our listeners, we're going to pan the wanted posters at the post office.</p>
<p>I mean...</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That would...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: that is not going to sell.</p>
<p>Who's going to sponsor that?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That would certainly be very boring to... to watch wanted posters, certainly if they were repetitious...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But if... if they hired someone like Justice Scalia to go on the screen and describe it...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: big audience.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Can I ask you a question about the facts of this case, please?</p>
<p>The blue brief describes it as a... a roadblock... roadblock set up in the evening, and as I understand it the crime was at 12:15 a.m., which I interpret to be midnight.</p>
<p>It was a midnight crime and I thought the roadblock was at midnight, and I wonder, how long did it last?</p>
<p>Was it started in the evening and lasted several hours or was it just...</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: To be frank, searching the record it's... it's relatively unclear.</p>
<p>My understanding is 90 minutes to 2 hours at most.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And it... it was though in the dark at... at night, not during the day?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Yes, it was at night.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And I also don't understand if they handed something to read, how could you read in the... at the... in the dark?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: That would also be equally as difficult, Your Honor.</p>
<p>I...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Does the record explain that they did hand something legible to the person or use a flashlight or what... what was the...</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Logic would seem to dictate that by the time the person received the flyer and drove away they would again be away from the scene of the event before they even read the flyer, which also makes it somewhat ineffective in that regard.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But did they... were there something they were asked to read before they left or just left with them to drive away with?</p>
<p>I just don't understand what happened, to tell you the truth.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, to... to take... to take the 10 to 15 seconds Detective Vasil describes as the duration of handing the flyer, asking two questions, and obtaining two answers, it would seem that reading the flyer would have had to have occurred sometime after the seizure.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I see.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: There wasn't very much on the flyer, was there?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, it did have some... it... it indicated the...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: We... we have it someplace, don't we?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Yes.</p>
<p>It is in the joint appendix and it's located on page 9 of the joint appendix, and there is... there is a great amount of detail that's in that flyer, certainly would suggest it would be difficult for one to read the entirety of it, understand the purpose for which they were even being stopped that evening, which is another point.</p>
<p>There was no advance signs, unlike sobriety checkpoints, where as you're arriving, and even before you have contact with... with the police officers, there's a sign that says, warning, sobriety checkpoint ahead.</p>
<p>At least you're putting... you're put on notice what it is that's taking place in front of you.</p>
<p>Here, people are waiting in line having no idea what it is...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but that... that happens in a lot of other contexts too.</p>
<p>You can be driving on a highway, all of a sudden everything comes to a stop.</p>
<p>What's the matter?</p>
<p>Is it an accident?</p>
<p>Are they having one-lane repair?</p>
<p>And you just don't know, I mean, that's part of the condition of driving.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, certainly we have to expect that we'll be stopped more often than anyone would wish in that context, but it... it's quite different when you are... when there's six to twelve emergency vehicles there and as you get closer and closer you see this encounter taking place before you with every single motorist in front of you.</p>
<p>That raises the anxiety of even the... the most innocent citizen, I would suggest.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Might I ask another question about the... the facts of the case?</p>
<p>Reading the flyer, it's something you could have handed to a pedestrian too who might have been at the scene.</p>
<p>Does the record show whether they did hand this flyer to pedestrians who might have been walking by at the same time the week after the accident?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, my understanding of this location, being familiar with the area, is that it's a major thoroughfare with...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I know...</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: multiple lanes.</p>
<p>It would be highly unlikely at midnight that any pedestrian would or should be walking on the shoulder of this high speed limit...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Oh, there are no sidewalks there?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: No.</p>
<p>There are rarely sidewalks in our town, unfortunately.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Oh, okay.</p>
<p>Mr. Ramsell, there's something I'd like you to comment on.</p>
<p>The... the Illinois Supreme Court was... was concerned about the... the effect of... of this practice, in effect, in opening the door to stops all the time.</p>
<p>They said, you know, there are loads of crimes and if it's justified here it will be justified in other cases and so on, and there have been some questions from the bench to that effect.</p>
<p>One answer to that might be that under the law as it stands now the police can conduct sobriety checkpoints and we will assume that they can make license and registration checks and things like that.</p>
<p>So the... the police already have an opportunity, to put it bluntly, to abuse their right to stop if they want to do it.</p>
<p>Is there any indication that there is this kind of abuse going on, and hence, is there any reason to believe that the abuse would be greater if this practice passed muster than it is under the existing law?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, I believe that law enforcement is always appreciative of any techniques or tools that they're allowed to use for investigatory purposes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But what... what do we know?</p>
<p>Empirically, what we do know?</p>
<p>What is... has there... has there been an indication of abuse?</p>
<p>Is there a reason to believe that this invitation, this tool, would be abused more than the tools that they now have?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I would believe that it would be more... more likely for abuse if this Court were to suggest that these type of roadblocks were a valid investigative tool.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But why... why?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Because it would simply, number one, it is... it makes for great publicity for law enforcement to use these roadblocks.</p>
<p>They feel that it's a...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, it makes for great publicity to... to have sobriety checkpoints.</p>
<p>That's one reason why they have them.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: And... I agree, even though statistically roadblock sobriety checkpoints tend to be far less effective than saturation patrols.</p>
<p>Most police chiefs comment that they don't get the type of publicity they receive from a roadblock that they get from saturation patrols.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Is it true that...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Suppose they had done the same thing they did here, the same thing, except that, in addition to giving them a flyer and asking them about what happened... were... you know, were you here a week before, they... it was also a check of driver registration?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I would suggest the programmatic purpose, the primary programmatic purpose employed in Edmond would still remain that this was for the purpose of crime detection and investigation, not for simply checking licenses.</p>
<p>The same...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, they were actually checking licenses.</p>
<p>I mean, they're... they're really doing it.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: And I...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And they... they pick up some people who don't... don't have licenses, but while they're at it they kill two birds with one stone.</p>
<p>And you say it would make it bad because its primary purpose was the other?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Justice Scalia, I would suggest the programmatic purpose, which would be a question of intent, would still remain that it was truly for the investigation of this particular crime and certainly the duration and the scope of the seizure would exceed the license check when questions were being asked about whether you had been here last week, whether you had seen anything regarding a hit-and-run or any other crime.</p>
<p>That would seem to exceed even the suggested appropriateness of a roadblock for license checks in Prouse.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That... that incremental point of time... you're really playing with a... an inconsequential... inconsequential impingement upon the person's time.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Ramsell, do you know... going back to Justice Souter's question... whether in the aftermath of Sitz there have been an increase in sobriety checkpoints in this country?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I know that a... a far greater number have been reported since Sitz, but I cannot confess to knowing what the statistics or the record-keeping was prior to Sitz, but it has... it has now crept into the American psyche that roadblocks are a... a regular way of life.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But do... do they exist in Michigan anymore, these sobriety checkpoints?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: No.</p>
<p>When the... when the case was remanded to Michigan, Michigan found under their own State constitution that this... that a sobriety checkpoint still remained to be an unreasonable violation of the search and seizure clause of their own constitution, so they do not have them.</p>
<p>Now, in this case, what we have is we have a... a very stale event.</p>
<p>In fact, the facts do not even suggest that the driver was perhaps even negligent in how the accident occurred.</p>
<p>We have a... a bicyclist on a major thoroughfare at midnight in a place where it's highly unusual to... to find pedestrians in a dark area, and there's been no indication that the driver was at fault other than failing to remain at the scene of the accident.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's pretty serious, isn't it, called hit-and-run?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: It's hit-and-run as...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right, so all that's at stake is that it was a hit-and-run and the guy's dead, all right.</p>
<p>So... so now what has that to do with the reasonableness of this?</p>
<p>I'm not... not asking you facetiously because I think maybe you think you want to tie it in and I just want you to do it.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, the consequences are very serious.</p>
<p>However, hit-and-run would also fall within dinging the car in the grocery parking lot next to you and failing to remain at the scene.</p>
<p>These are single events...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So you mean that it might be reasonable to do it for some serious crimes but not for less serious?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I would suggest that it cannot be done for any crime except in exigent circumstances, which we do not have here.</p>
<p>This is a stale event...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: So even... even if it were, say, a carjacking, where there was a fatality, if it's stale it can't be done?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Yes, Your Honor.</p>
<p>I would... I would respectfully say that, under the analysis in Edmonds, there is a lack of exigency.</p>
<p>Edmonds suggests that, but for the emergency circumstances of an... an imminent terrorist attack, otherwise that would be considered a violation of the Fourth Amendment.</p>
<p>This is single accident.</p>
<p>It... it does not fall within the magnitude of any of the previous issues that have been brought before the Court...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Now you seem... seem to be arguing the same thing that, other things being equal, if you lose on your other points you could only do it in a serious but not non-serious.</p>
<p>Is that what you're... is that the point you're making?</p>
<p>And if so, I want to know what the line is.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Well, the line is exigency, and exigency meaning there was no... there's an immediate hazard on the roadway, which was what seemed to justify sobriety checkpoints in Sitz, that there would have been an effectiveness to removing then-hazardous drivers and preventing the potential for future injury to life and limb.</p>
<p>This is a post-event, non-exigent roadblock.</p>
<p>The facts, nevertheless, don't have the gravity of the public concern.</p>
<p>In the Brown v. Texas...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, what if... what if you've got a... a license number and for... for a serious crime that was committed, say, an hour ago?</p>
<p>Can... can you then conduct a... this sort of program?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I would submit yes, that you could under that circumstance.</p>
<p>Number one, you could tailor the roadblock substantially less.</p>
<p>You have the exigency because it is a fresh pursuit analysis.</p>
<p>You certainly wouldn't need to pull over every car and question them if you had a license plate number to work from.</p>
<p>And so it... it would certainly even be capable of being more sufficiently tailored so that those who are admittedly innocent are less likely to have their liberties interfered with.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Of course...</p>
<p>Well, what if you... what if you just had the information that it's... it's a black Ford SUV?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: And it happened one hour ago?</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yeah.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I believe under that set of circumstances the exigency would suggest there would be a potential for a reasonable checkpoint tailored in scope and duration with sufficient guidelines in place.</p>
<p>In fact, in this particular checkpoint, we have virtually no guidelines in place.</p>
<p>We have a field officer who testifies that what he did was to ask some questions.</p>
<p>There's no indication as to why other persons were sent to secondary staging areas.</p>
<p>We do not have any guidelines so that if a motorist had said, yes, I was here last week, and yes, I think I have some information, we have no guidelines for those field officers as to what to do and how to treat that motorist and how to detain that person.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You know anybody's that's challenged these things who... for any reason other than the exclusionary rule?</p>
<p>This case wouldn't be here except for the fact that your client during the stop was found to be driving under the influence.</p>
<p>Had that not happened, don't you think there's zero chance that anyone would have cared enough, would have felt beset upon enough by the police to bring some action to stop this Gestapo-like activity?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I do believe there are...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I mean, it's... it's really just the exclusionary rule driving... driving this case.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: Respectfully, Your Honor, I do... there... I do believe there are people who care and there are people who care about our right to be let alone, our right of free passage.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, if people in Lombard care about it, they can tell the police to stop doing it.</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I certainly would hope that they would also exercise their right to let them know that they dislike these roadblocks as much as perhaps others in more intellectual pursuits, but...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Are there indications nationwide that the public makes objection to roadblocks, other than the person that's caught for drunk driving?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I would suggest that most... most persons are not pleased by roadblocks.</p>
<p>I believe that most people feel that they do reflect on an invasion of their privacy and liberty.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I mean, is there evidence of that?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: I... I cannot cite any polling that's been taken one way or the other that would really flesh that out.</p>
<p>Here we have far less than the drug interdiction that was rejected in Edmond.</p>
<p>We have a single accident.</p>
<p>We have far less than the concern about protecting our national borders, as we had in Martinez v. Fuerte, and certainly not the imminency of the hazard that was found in Sitz.</p>
<p>There's frankly no empirical or actual data to even support that this roadblock will advance the interest, and by the fact that nothing was advanced in this particular event suggests that even in a balancing test we don't have the sufficiency, the gravity of the public concern, nor do we have any indication of any degree to which this seizure would advance the public interest.</p>
<p>This is more akin to Prouse, where the Court found that the... the likelihood of finding an unlicenced motorist versus the likely numbers of persons that will be stopped was so substantial that data was insufficient.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, Prouse was random stops, though, wasn't it?</p>
<!-- donald_j_ramsell--><p><b>Mr. Ramsell</b>: It was random stops.</p>
<p>However, the effectiveness was mentioned as... as one of the factors, and there were certainly reasonable alternatives that were suggested that could have avoided the random stop scenario.</p>
<p>And here we have admittedly innocent drivers as well with no escape route, so a person couldn't even avoid the... the compulsory stop and questioning.</p>
<p>I would also submit that this analysis, if... if found appropriate here, would equally allow for the stop of pedestrians at... on the sidewalk.</p>
<p>It would allow the police to circle an office building and have the persons run through the... with the gamut of brief questioning before they were allowed to leave an office building.</p>
<p>And it would be very unmanageable and unworkable to find an appropriate balancing test, even though I would submit that one thing the Court needs to do is to, of course, let law enforcement know in advance what will be acceptable conduct on their part and that it would be inappropriate to allow for a case-by-case, fact-sensitive analysis based on the plethora of crimes that could potentially lead to it, the geographic area in a small rural town.</p>
<p>The rural police chief may find roadblocks or... may find their most serious crime to be the stealing of a purse and therefore a roadblock of some form justifiable there, where that same roadblock in an urban setting would be found to be unreasonable and unjustifiable, and certainly those politically accountable officials that feel that their citizenry are more favorable to roadblocks may be encouraged to allow them to occur more often.</p>
<p>Thank you.</p>
<p>Rebuttal of Gary Feinerman</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Ramsell.</p>
<p>Mr. Feinerman, you have 2 minutes remaining.</p>
<!-- gary_feinerman--><p><b>Mr. Feinerman</b>: This Court in Edmond found that narcotics check... narcotics checkpoints are so obnoxious to core Fourth Amendment values that a per se rule of invalidity was justified and the principal question here is whether informational checkpoints present the same Fourth Amendment dangers that general crime control checkpoints present, and the answer to that is no.</p>
<p>And in order to answer that, we... we have to figure out what the hallmarks are of a crime control checkpoint, and we suggest that there are at least two.</p>
<p>The first is that it's the purpose of the checkpoint to incriminate the motorist as opposed to the situation in Lombard, which was simply the police asking for help, and that distinction makes a difference under the Fourth Amendment for several reasons.</p>
<p>The first has to do with privacy.</p>
<p>At a general crime control checkpoint, the police are trying to learn something about you, whether you've committed a wrongdoing, whereas at an informational checkpoint there's just asking for help, somebody died here last week, could you help us find the perpetrator.</p>
<p>There's also a difference in terms of jeopardy.</p>
<p>At a general crime control checkpoint you may be interrogated, detained, arrested, prosecuted, and possibly jailed, whereas at an informational checkpoint, again, you're just being asked for help, and that's a critical distinction that this Court drew in Ferguson between the drug test that was invalidated in Ferguson and the drug testing programs that were upheld in Skinner, Acton, and Von Raab.</p>
<p>There's also an indignity element to a general crime control checkpoint.</p>
<p>You're being... it's... it's a bit of an indignity to be suspected as being a potential law-breaker, whereas in... in an informational checkpoint there's really no impingement on dignity, you're just, again, being treated as an ally of the police and being asked for help, and in fact, it's an act of responsible citizenship to provide help in that kind of situation.</p>
<p>The second distinction is that a general crime control checkpoint... the police are simply trolling for hitherto undiscovered crimes, whereas in an informational checkpoint, they're investigating a known, specific crime, and that's who makes a difference.</p>
<p>There's a difference between... as Ms. Millett pointed out... there's a difference between knowing a crime and finding the criminal and then simply rounding up a bunch of potential criminals and trying to peg a crime on them.</p>
<p>And that's important not only for the fact that we're uncomfortable with general... general surveillance, but also it's a traditional police function.</p>
<p>When a crime happens, police ought to return to the scene of the crime and find witnesses.</p>
<p>Thank you.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Feinerman.</p>
<p>The case is submitted.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: The honorable court is now adjourned until Monday next at 10 o'clock.</p>
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The Oyez Project </div>
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Fri, 09 Jan 2009 14:49:05 +000056737 at http://www.oyez.orgMaryland v. Pringle - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2003/2003_02_809/argument
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Case:&nbsp;</div>
<a href="/cases/2000-2009/2003/2003_02_809">Maryland v. Pringle</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Gary E. Bair</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in No. 02-809, Maryland v. Joseph Jermaine Pringle.</p>
<p>Mr. Bair.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>When the officer stopped the car respondent was riding in and found drugs packaged for distribution in the rear seat armrest, and then also found a large amount of cash in the glove compartment...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What... the rear seat armrest was pushed up...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: and then the drugs were behind the... the armrest?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, Mr. Chief Justice.</p>
<p>The rear seat armrest was pushed up against the rear seat.</p>
<p>The officer merely folded it down and then the drugs appeared, and these are drugs that were packaged in five separate individual packages that were packaged for distribution at $20 a bag.</p>
<p>The officer also found $763 in a rolled-up ball of cash in the glove compartment, and there... at that time there was individualized probable cause that focused on all three people in that car, and this is so for three principal reasons.</p>
<p>First...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: At the end of the day, what happened?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: At the end of the day, all three were arrested, respondent confessed, and said the...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And respondent was a front seat passenger?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, Justice O'Connor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: He's the one who confessed?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And was found ultimately guilty of...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: He was found...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: some drug-related offense?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: He was found guilty both of possession and possession with intent to distribute.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And the other two?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: The other two were not charged formally after respondent confessed.</p>
<p>The officer made a discretionary decision not to charge the other two at the station house after respondent confessed to this crime.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Do you say that there was probable cause for the arrest of all three at the time they were found?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, Your Honor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Was there probable cause sufficient to support charges at a preliminary hearing...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think there would have been.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: against all three?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I... yes, Justice O'Connor, I think there would have been.</p>
<p>I think, given the circumstances of this arrest, the mere fact that one of the three confessed doesn't ultimately determine that the other two were not culpable.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is there any additional requirement for establishing probable cause at a preliminary hearing above and beyond what's needed for the arrest, or are they identical, in your opinion?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I would say they're identical, Your Honor.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So... so under... under that view, assume no confession, hypothetical case, under that view, these people, all of the three could have been bound over for trial?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I believe so.</p>
<p>I believe so.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And under that view, any motion to dismiss prior to trial would have to be denied?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I believe there would have been probable cause to charge and to take the cases to trial.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And I suppose what happens in that case is the judge says, and I want to tell you right up front I think this is a very skimpy case, you'd better come up with something... I guess that's the way it works...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think so...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But there's... but the... as Justice O'Connor said, it's probable cause and it's the same standard... excuse me... it's the same standard to bind over on arraignment as it is for the officer to arrest?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: My understanding from the case law, Your Honor, is that probable cause is probable cause, be it to search, to arrest, or it... I think it's a fluid concept, obviously depending on the exact context, and I'm not saying that a prosecutor would not exercise discretion as would a police officer in a given case not to take a case forward.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, a preliminary hearing is largely a matter of Maryland law, isn't it, or State law?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: It is and...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I mean, is there any... any constitutional requirement that there be a preliminary hearing before a criminal case is tried?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Not that I know of, Your Honor, no.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, I take it even under the Constitution, if it's a Federal case, both the indictment and the... or the information shows simply probable cause, that's enough to bind over?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I believe so, Justice Kennedy, I believe so.</p>
<p>Now, in this case, of course, there was...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But if you say it's fluid, that... that concerns me.</p>
<p>I was somewhat puzzled by what the Government said in its brief, page 26 to 28, it says, well, you know, it's fluid, the prosecutor takes a second look and it... it sounds as if the prosecutor has a greater burden, but I... I'm not sure that that's the law.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I'm not sure it's a greater burden.</p>
<p>I think the prosecutor's decision, of course, is looking forward to trial where they know that they have to prove the case beyond a reasonable doubt.</p>
<p>They know they have to get past a motion for judgment of acquittal.</p>
<p>The police officer on the scene is making the same type of decision vis-a-vis probable cause but it's in a very different context.</p>
<p>I think that's the difference.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: In your view, is this very fact-specific so that it might come out differently if the money and the drugs had been located in some little pocket next to the driver as opposed to some rear seat passenger or other passenger?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think one factor that would significantly change the totality of the circumstances here would be, for instance, if the drugs had been found on the person of one of the passengers.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: No, that wasn't my question.</p>
<p>What if...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: If it had been...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: they were found very close to the driver, you know, sometimes there's a little pocket right next to...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: In the door?</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: on the door, on the driver's side.</p>
<p>Suppose it were there but you had a passenger in the front and in the rear.</p>
<p>Any different result?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Not in this case, no.</p>
<p>I think... I think if... if the drugs are found in a common area of the passenger compartment of the car...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: How about the trunk?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think the trunk changes things a little bit, but of course you have to look at the totality of the circumstances, Justice Ginsburg.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Why a little bit?</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I thought this whole case was predicated... your whole case was predicated on those drugs between the armrest and the backseat were accessible to all three people in that car.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: That's...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Now, if you have something in a locked trunk, it truly is not accessible to the passengers.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: It certainly is not as accessible, and of course it's not as immediately accessible, but, for instance, if there had been a large quantity of drugs in the trunk or if there had been a dead body in the trunk, I think then there is a... the calculus changes in terms of totality of the circumstances, and I think if it were that situation, even though that particular evidence was in the trunk, I think there's still a... a strong inference that could be drawn that everyone in the car knew about it, because who would take the chance in terms of taking along innocent passengers...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, let's stick to the five... these five bags that were stuck in a Ziploc bag.</p>
<p>The Ziploc bag is in the trunk, not a dead body.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I understand.</p>
<p>I think in that case there would be a much closer case, it would be a much more difficult case vis-a-vis all three occupants of the car.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But under...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay, what about the...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: under... under your view, if... if the car is in a high crime area and some mother gets a ride from her son who she perhaps doesn't know has been involved in drugs, then if drugs are found anywhere in that car, she's subject to arrest and... and sufficient for charge?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Not... not...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I mean, suppose it's at... in the middle of the day and she's going to the grocery store, we don't have it at 3:00 a.m. in an area where drugs are frequently sold.</p>
<p>Does that enter into the calculus?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think it does, Your Honor.</p>
<p>I think, obviously with... with... with the totality of the circumstances, anytime you change... and, of course, some of these are going to have more minor impact, some are going to have more major impact.</p>
<p>But in this case you had, of course, 3:16 in the morning, three men who were roughly of the same age who appeared to be intimately connected with one another, you had the drugs and the money.</p>
<p>I think here's a very strong case, but I agree, Justice O'Connor...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What if there had been four people in the car?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I don't know that four people would change things.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: How about six?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think within the...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Or what if it was a minivan and there were eight in the minivan?</p>
<!-- unidentified_justice--><p><b>Mr. Bair</b>: [Laughter]</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I'm not sure it changes it significantly, Your Honor.</p>
<p>I think that the most significant...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: You think with eight people in the minivan you could arrest all eight and hold them over for trial?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think if you have identical circumstances to these in terms of the time, how well-acquainted they all appeared, the fact there was money, the fact that there were drugs packaged for distribution.</p>
<p>It appeared to the officer, a reasonable inference, that there was a drug distribution common enterprise.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But the distribution, as I understand it, was just enough to take care of a big party.</p>
<p>There was no evidence that they were for sale, was there?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Well, the evidence, at the time the officer made the arrest, I think he could draw an inference that there was cash proceeds perhaps of former drug sales, prior drug sales, and there were five individually packaged crack... hits of crack cocaine.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And the charge was possession with intent to distribute, wasn't it?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, it was both simple possession and possession with intent to distribute, and he was convicted.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: How about if it had been a bus?</p>
<p>Now, we've gone from the sedan to the minivan, how about the bus?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think a bus is different, Your Honor.</p>
<p>I think a bus changes things significantly in the... in the context of, of course, the numbers of people are much greater, and then there's...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Are you talking about a public bus or you're talking about a chartered bus?</p>
<!-- unidentified_justice--><p><b>Mr. Bair</b>: [Laughter]</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think that would affect obviously the totality of circumstances as well.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What... what is... what is the rule that you're... there's the restatement hypotheticals... Restatement of Torts, where there's the dead body, two people are each accusing the other, and add... I don't know how the hypothetical would work... but add to the mix that only one could have done it.</p>
<p>Can you arrest both?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think you can, Your Honor.</p>
<p>I think both the Restatement of Torts, the Model Code of Pre-Arraignment Procedure, and just the... the nature of probable cause would permit that, because we're talking about...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: The Model Code of Pre-Arraignment Procedure just talks again about probable cause?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Same situation where you have, say, two people, only one of whom could be guilty of the crime.</p>
<p>You could still have... you still would have probable cause to arrest both.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But that's two people and here you've got three.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What about three?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I was going to ask, what about three?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think three is... is...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You can arrest all three?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think so.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What about five?</p>
<p>You're going to arrest all five?</p>
<p>Even... I mean, you know, it gets worse and worse...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Well, of course.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: 10 percent chance, there are 10 of them now...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: And... and...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: so the chance that any individual one did it is 10 percent.</p>
<p>That's still enough?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think we can't draw... the Court in Gates said that you cannot quantify probable cause.</p>
<p>You have to... in those circumstances...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It doesn't mean probable.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: No, it does not mean probable.</p>
<p>Clearly...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why do we call it probable cause?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I'm not... I think there's a bit of a misnomer there, but clearly from the case law of this Court, it means a fair probability, it means something greater than reasonable suspicion under Terry...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But if you had to reduce it to a percentage figure, what would you call the percentage required for probable cause?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I don't know that I could, Your Honor.</p>
<p>I really don't know that it's useful to...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But it's less than 50, though, I gather?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes.</p>
<p>Your... the cases of this Court has said...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So that takes care of the two people in the room, but when you get down to 33-1/3 with three people?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think... I think three people clearly would be...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And with four people it would be 25 percent.</p>
<p>Is that enough?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Probably, probably.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Probably.</p>
<!-- unidentified_justice--><p><b>Mr. Bair</b>: [Laughter]</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You... you agree... you agree that at some point the probability is... when the numbers of people present keep increasing, at some point the probability is going to be too slim?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, I agree with that.</p>
<p>I agree with that, but again, in Illinois v. Gates, this Court said we will not, we cannot, it's not useful to try to quantify probable cause in that way, we still have to look at the totality of the circumstances beyond whether there are two people or three people or whatever.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And one is...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Of course, on the Government's theory I don't think it would matter, because they say you can infer a conspiracy, and I suppose then the whole bus could be in the conspiracy, but if it's an individual approach, which I think you're taking, then the number of people might make a difference.</p>
<p>I think so.</p>
<p>Now, of course, it would depend on... on the crime that the probable cause was going to.</p>
<p>In this particular crime, of course, drugs can be jointly and constructively possessed, so clearly in this particular car, all three of the people could be guilty of the crime, not just one.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Do you accept Justice Stevens' suggestion that your position might differ from the Government here?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I don't know that it does.</p>
<p>I think our positions are basically the same.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So... so you do think a conspiracy can generally... can be inferred as to all people in these... in the instance like this?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: In our case, absolutely, absolutely.</p>
<p>In our case, clearly...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But if one of them...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But you didn't argue the... excuse me... you didn't argue the conspiracy theory in the State court, I don't think, did you?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Well, I think we did, Your Honor.</p>
<p>I think we argued in the State court that because drugs can be jointly and constructively possessed, that any one, two, or three of the individuals in the car were... were guilty of this crime.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: If you know nothing more than what you know here... I mean, I take it that if... if it were undisputed that one of the three was a hitchhiker, you... you would not make the argument with respect to the hitchhiker?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think if... if it's undisputed, and of course, that's going to be a difficult situation to... to know that there's no actual connection...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That's the wonderful thing about being on the Supreme Court.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: If it's...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You can make those assumptions.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: If it's undisputed, then I think that significantly changes, because I think a lot... a core concept here is this notion of common enterprise, that when you have people in a car together, particularly a small passenger car, there's an inference, I think in this case a very strong inference, that all three of these people were engaged in a common enterprise.</p>
<p>So...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But do you have... do you need the...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What if the car... what if the car included a driver and two hitchhikers and the drugs were found exactly as they were here, and there's obviously no common enterprise, would there be probable cause?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I guess it would be... of course, that would be a more difficult case because you had the money in the glove compartment of the car and the drugs in the backseat of the car, so that...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I'm not sure the money really adds anything to the analysis, to tell you the truth.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think it adds...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Because there's certainly nothing illegal about carrying money in the glove compartment, where it is illegal to carry drugs in the... behind the seat... the armrest.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Well, certainly the money without the drugs would be a... a different case than the drugs without the money.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But you...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The hitchhiker... the hitchhiker example poses a question for the arresting officer, because does he have to accept the declaration of someone that I'm just a hitchhiker here?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: No, and... and that, of course, goes back to whether it's undisputed in some way, I don't know quite how it would be undisputed.</p>
<p>You've always got the... the officer who on the scene is making a reasonable judgement from all the facts and circumstances, and one of those is, I don't have to believe the criminal or criminals in this car.</p>
<p>I know there are drugs in the car, we have a known crime here being committed in the presence of the officer, possession or possession with intent to distribute drugs.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, I'm still curious about the answer to my question.</p>
<p>Assume the officer did accept the truth of the representation they were two... two hitchhikers picked up at different times, and maybe he was following the car, for instance, so he knew that was true, and then there's the driver and then there are drugs in the backseat just as there are here.</p>
<p>Would there be probable cause in that case?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Two... two answers to that, Justice Stevens.</p>
<p>One, of course, is you would measure the probable cause by an objective standard and not by the subjective standard of that particular police officer.</p>
<p>The other is...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But what is the answer?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: The other is, it could be that...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I thought you were going to say the two answers were yes and no.</p>
<!-- unidentified_justice--><p><b>Mr. Bair</b>: [Laughter]</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: It could be, Your Honor, that the... the driver knew the hitchhikers and that's why he picked them up.</p>
<p>I mean, a lot of times people...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, no, no.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I'm just assuming the only relevant facts are that it's undisputed they were two... two unrelated... they're three unrelated people, they're just entirely different backgrounds, one doesn't even speak English and one doesn't speak Spanish, but there are three of them in the car and the drugs are found exactly under the circumstances here.</p>
<p>What I'm trying to say... if there were no conspiracy theory, would there be probable cause?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think so, yes.</p>
<p>Yes, I think there would be.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: You... you have... you really have to say that based on the dead victim hypothetical that you answered earlier.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: I think so, I think so, that... that if the, again, one... the other inference among the... the... the indicators of a common enterprise would be, I think it's unusual that several people are going to be taking a chance driving around, either with evidence of a murder or evidence of a drug conspiracy.</p>
<p>They're not simply as a matter of reasonable inferences that an officer can draw, take the chance of having innocent people along.</p>
<p>Unless there are any further questions, I... I'd reserve the remainder of my time.</p>
<p>Argument of Sri Srinivasan</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. Bair.</p>
<p>Mr. Srinivasan, we'll hear from you.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Thank you, Mr. Chief Justice, and may it please the Court:</p>
<p>The totality of the circumstances apparent to the officer at the scene established probable cause for respondent's arrest.</p>
<p>Of particular significance, the officer uncovered drugs that were packaged for distribution and that were concealed in the location in which they were readily discoverable by the other passengers.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Your brief reads to me... at about page 15... to suggest that you're proposing a broad rule that probable cause exists to arrest all occupants of a car anytime commercial quantities of narcotics are found in the passenger portion of the car.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: It's... we don't intend...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is that your position?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: We don't intend to suggest a broad rule, Justice O'Connor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Do you agree that it is a totality of the circumstances test?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Yes, it's a totality of the circumstances test, and it will turn on contextual factors that are present in any particular case.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, you do say at page 15, beginning of the first full paragraph, for these reasons, the discovery of an amount of narcotics suitable for distribution in the passenger compartment supports an inference that all of the car's occupants were aware of, and hence, involved with the drugs.</p>
<p>That's a sweeping statement.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Well, what... what we intend to say is that ordinarily when drugs that are packaged for distribution are found in a location in which they're readily discoverable by the other passengers, a reasonable officer can fairly conclude that there's a fair probability that each passenger is... is aware of the drugs, but of course in particular cases...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But it... it might... wouldn't different factors enter into it?</p>
<p>Suppose it's a young child...</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Absolutely, Justice O'Connor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: in the vehicle, and it's in the middle of the day and they're dropping the child off at school or something.</p>
<p>Are you suggesting there would nonetheless be this inference and the child could be hauled up and sent to the juvenile court?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: No.</p>
<p>The inference is tethered to the particular facts of this case.</p>
<p>In cases that present different facts, for example, if a child was in the car of... if, as was earlier discussed, a hitchhiker were in the car, the probable... probable cause calculus would be different.</p>
<p>But in this case there was no reason to suspect that any of the individuals was uninvolved in the possession of the cocaine.</p>
<p>In fact, what's particularly significant in this case in our view is the location in which the drugs were found, because they were found wedged behind the rear seat armrest, which apparently is the type of armrest that's adjustable in an up or down position.</p>
<p>The very purpose of that type of armrest is to give the passenger an option according to his preference whether the position... the armrest in one position or the other, so it's highly...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: The only evidence that supports the notion that some were uninvolved is that as soon as one of them confessed, the police immediately dismissed the charge against the other two, and therefore abandoned the notion that it was a common enterprise.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Well, I... it... there's a... I think there's a different question concerning whether there was probable cause for an arrest and the determination by an officer whether to proceed with charges.</p>
<p>Just because the officer...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: You'd think if the... if the backseat person or whoever it was that confessed had confessed while the officer was arresting him, there would have remained the probable cause as to the other two?</p>
<p>Could he have said, I don't believe you, I'll take all three of you in anyway?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: There might well have been, Justice Stevens, because an officer's not required to believe the version of events that's given to him by people on the scene.</p>
<p>It might well be the case that they have a coordinated plan in advance to pin the blame on a particular person as opposed to the other two, and an officer can take into account the totality of circumstances in making that type of assessment.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: May I... may I clarify whether you are indeed relying on common enterprise?</p>
<p>I thought the view was it may or may not be a common enterprise, but here is a situation, drugs equally accessible, drugs accessible to any one of the three.</p>
<p>We can't say whether all three or which one, so looking at the three, and we say, well, it's not more... not more likely the driver than the front seat passenger, who's there behind the money, or the backseat passenger, because any one of them could have pulled down that armrest.</p>
<p>I thought that was your theory, not a... not necessarily a common enterprise.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: That's correct, Justice Ginsburg.</p>
<p>It's not necessarily a common enterprise.</p>
<p>It could be any one of the three or it could be all of them or some combination of the three of them, and the combination of those various scenarios rose to the level of a fair probability that respondent was involved with the cocaine.</p>
<p>And as I was... as I was saying, that's particularly the case because they were concealed behind the armrest, which is a type of instrument that affirmatively invites manipulation by a passenger, so if one of the occupants of the vehicle alone were responsible for carrying cocaine, it seems quite unlikely that he would have chosen the area behind the armrest as a place to conceal it from the other passengers.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Do... do we demand the same standard from the arresting officer as we do from the district attorney who decides whether or not to proceed to preliminary hearing?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: The probable cause standard works the same.</p>
<p>In both situations the question would be whether there's a fair probability.</p>
<p>Now...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But... but do we demand a higher standard...</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Well, it's...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: from either of them in making that assessment?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: It's often the case that prosecutors will have more rigorous standards as a matter of internal... matter of internal guidelines.</p>
<p>And for example, in the U.S. Attorney's manual, it dictates that prosecutors in the Federal system need to ensure that it's likely that they'll be able to obtain a conviction on...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well isn't... isn't that... that means the... the probable cause standard is the same, but the prosecutor has an obligation to try to find out more and get more evidence before he goes forward.</p>
<p>Isn't that the difference?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Right.</p>
<p>The nature of the application of the probable cause standard is different in the prosecutorial stage because the prosecutor is identifying a particular offense, laying out the facts to support that offense, and the...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But the... but the standard... the standard that determines the... the... the degree of likelihood of inference, that is the same standard, whether we're talking about the police officer or whether we're talking about the district attorney later?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Correct.</p>
<p>That remains constant in both scenarios.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I... I'm not sure what you're saying.</p>
<p>You're saying it... it can get to the jury with no more than probable cause and should not be thrown out by the court?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: There's a different... there's a different question whether the evidence is sufficient to convict as presented by the prosecutor and whether the prosecutor has enough to go forward with the charges.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, but you're saying the prosecutor does not have an obligation to refrain from bringing a prosecution where he plainly on the face of it doesn't have enough evidence to convict?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: As long as there's probable cause to go forward, the prosecutor can go forward with the charges.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: To say plainly on the face of it is something that a... a prosecutor is seldom confronted with.</p>
<p>I mean, you've got different people telling different stories usually and it's usually a question of who's believed.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: That's correct, Mr. Chief Justice, and...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, I'm assuming he has three people in the car and the chance for each of them is 33-1/3 percent...</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Well, he could go...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: and he prosecutes one of them and he has nothing else.</p>
<p>That's all he has, three people in the car, stuff in the back seat...</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Well, that's...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: and he picks the passenger and brings a prosecution.</p>
<p>The passenger, it could have been me, it could have been the other two, 33-1/3 percent.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Well, that's... that's different from the facts of this case, but even assuming that it were an equal likelihood that each of them independently were involved in the offense, the prosecutor could go forward in that situation, but it's highly unlikely that he would go forward in that situation because... because he's unlikely to obtain to a verdict in his favor.</p>
<p>So there's institutional incentives...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And the district court probably would not let the case go to the jury if the motion was made at the end of the prosecution's case and this was all you had?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: That's correct, Justice Kennedy.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The prosecution should... the prosecutor should bring cases which clearly will not be able to go to the jury?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: No, not should bring cases...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: May, may.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: May, under the Constitution.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Okay, that's not my understanding of the prosecutor's...</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: And that's why, I think, prosecutors typically enforce upon themselves a more rigorous obligation than the probable cause standard.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But we have no case saying that they may not proceed?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: No, there's no case that I'm aware of that says that they can't proceed where there's probable cause.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you just said the manual instructed them not to bring cases to trial.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: In... in the Federal system...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: there's Federal guidelines that spell out when Federal prosecutors are supposed to bring cases to trial, but I'm not aware that that's required by Federal law or by the Constitution.</p>
<p>Each prosecutor's office might have their own...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Do you have readily at hand the... the citation to the manual?</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: I don't... I don't have the particular provision.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Of course, the... the manual wouldn't in any way bind Maryland authority.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: That's correct.</p>
<p>Each prosecutor's office might have different standards.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: If... if the Federal manual binds anyone.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Right.</p>
<p>Well, the deficiencies in the Maryland court's probable cause analysis, we think, are particularly are apparent when one considers the implications for officers at the scene in circumstances like this case, because apparently the up-shot is that officers either could arrest no one or that they could arrest the driver alone, and the latter situation seems unsound because perhaps the least likely scenario in circumstances like this case is that... that the driver was acting alone and carrying the contraband in the car, because if the driver in fact were acting alone, one might expect that he would conceal the contraband in a location in which it was not so readily discoverable by the other passengers.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: What about the respondent's position that your position means two innocent people may be locked up in jail, because suppose Pringle hadn't fessed up, and he exercised his right to remain silent.</p>
<p>Then you might have a prolonged periods, assuming they couldn't make bail, three people stuck in the brig and two of them are innocent.</p>
<!-- sri_srinivasan--><p><b>Mr. Srinivasan</b>: Yes, Justice Ginsburg, it's possible that innocent persons will be arrested and bound over in circumstances like in this case, but the probable cause standard accepts that possibility as the cost of ensuring the effective enforcement of the criminal laws.</p>
<p>In fact, this Court reiterated in Wardlow recently that the probable cause standard accepts that innocent persons may be arrested on occasion.</p>
<p>That's simply the cost of a functioning criminal justice system.</p>
<p>Argument of Nancy S. Forster</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Srinivasan.</p>
<p>Ms. Forster, we'll hear from you.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>This is a unique case with highly unusual facts, and the reason it is unique is because of the facts... not because of the facts that exist so much in this case, but because of those that do not exist here.</p>
<p>There was no testimony whatsoever in this case that Mr. Pringle had control over or knowledge of the drugs hidden in the back seat of the car...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Ms. Forster, when you say testimony, you're not referring to any scheduled hearing or formal hearing, are you?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, Your Honor, what the court in Maryland reviews on appeal is the motion to suppress hearing, and at that hearing there was no evidence presented whatsoever that the officer in this case noticed any furtive movements by Mr. Pringle, any furtive gestures, that he said anything suspicious at the scene, or that he acted in any unusually nervous manner.</p>
<p>All we have here...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, I thought we were considering this on the basis offered, which is the three people at 3:30 a.m. in a high crime neighborhood in a sedan where there were a certain quantity of drugs behind the armrest and money in the glove compartment.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: A few corrections, if I may, Justice O'Connor...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Three people in the car.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: This is... 3:00 a.m. is accurate, 3:16 a.m. It is in a residential area.</p>
<p>This was not in fact a high crime area.</p>
<p>And I think that under the totality of circumstances we have to put that in context, and the context is this, that it's 3:00 a.m. on a Saturday night with a car of three young men in their twenties in a residential area, and I think that anyone who has children of that age knows that often their Saturday night does not even begin until 10:00 or 11:00 p.m....</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, a lot of people wouldn't refer to children as being in their twenties, I think.</p>
<!-- unidentified_justice--><p><b>Mr. Bair</b>: [Laughter]</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Young adult children, Your Honor.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: You... you make an interesting opening statement that this is a highly unusual... we've... a lot of us read a lot of these cases.</p>
<p>It seems to me this happens all the time, that drugs in the car, the person says, it's not mine.</p>
<p>It seems to me that that's commonplace.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: But what we have here with respect to Mr. Pringle is simply presence and nothing more.</p>
<p>We have no further...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But isn't there... isn't there something more than presence here?</p>
<p>Isn't the significance... isn't the significant evidence of this case something that appears when you contrast it with Houghton from a couple of years ago?</p>
<p>Houghton, you had evidence that the driver of the car was a recreational, a personal drug user.</p>
<p>We don't, I think, in this society, at least certainly today, assume that everyone who is in the company of a recreational drug user is also a drug user or an accessory to the first person's drug use.</p>
<p>Here, however, what the police officer had was evidence, not merely of the time, but of... of three people in a relatively small car with commercial quantities of drugs, an amount of money that was enough to suggest that drug dealing was going on, and I think a... an inference was possible that someone in that car was dealing in the drugs.</p>
<p>And it seems to me that the different inference that can be drawn about the others here as distinct from the inference in the Houghton case is, most drug dealers do not go around in their place of business, the car, with people who are totally innocent of drug activity...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: If I...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: and isn't that the basic difference between this and Houghton and doesn't that inference support... amount to probably cause?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Your Honor, if I... if I may, with respect to this being packaging... the drugs packaged that is indicative of sale or for distribution, there was absolutely no evidence in this record that this was anything inconsistent with personal use.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Five... five crack cocaine hits?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Yes, Your Honor.</p>
<p>In fact, I think that there are a lot of crack cocaine addicts for which that is a small amount of personal use.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But is...</p>
<p>How about a big roll of money?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: And, Your Honor, also, there's a problem with the record in this respect with regard to money...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, you pointed it out, but I think it... I thought, and tell me if I'm wrong here, I thought that it was... it was... the evidence was, regardless of how he first described the quantity that he saw, I thought the evidence came out that there was 700 and some odd dollars in it, so I think the judge could infer that it was fairly... a fairly sizable roll of bills.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Justice Souter, the actual amount did not come out until the trial.</p>
<p>That never came out at the motion to suppress hearing, and in fact, the amount of money was never characterized at the motion to suppress hearing by the officer who testified, other than to say he saw the sum of money, that's all.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And what is in... and it was in the glove compartment?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: It was concealed in the glove compartment?</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And it was open, it wasn't in a wallet or something like that?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: A roll of bills.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: We don't... we don't know.</p>
<p>In fact, the officer who... Officer Snyder, when he testified at the motion to suppress hearing, simply said that when Mr. Parlo, the driver of the automobile, went to retrieve his license and registration from the glove box, that is when I saw the money.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So it's reasonable...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But he... he must have seen it in the form of a... a roll of bills or something, rather than, as Justice Souter said, just not in a wallet.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: The record is unclear.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but, I mean, you... you don't have to have been born yesterday to decide that.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, the... Your Honor, I guess the point is, is that all that was before the trial... the trial judge at the motion to suppress hearing... there was never any characterization of the denomination, the amount, nothing, just the only thing that was said was the money.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Do you have a roll of bills exposed in your glove compartment?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: At times I do, Your Honor.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You do?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You better be careful if you do.</p>
<!-- unidentified_justice--><p><b>Mr. Bair</b>: [Laughter]</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: I might also point out that at the actual trial, the expert who did testify for the State with regard to the... whether or not this was an intent to distribute... testified that without Mr. Pringle's confession and this statement, he could not in fact say that this was consistent with an intent to distribute based solely...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So it was at least possession.</p>
<p>So would you concede that a crime... in the officer's presence there was evidence of the commission of a crime?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Yes.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Then... so the officer says, I know that a crime has been committed.</p>
<p>In the whole world there are only three possible people who could do it.</p>
<p>What instruction would you give to the officer on the scene who knows that a crime has been committed, there are three possible people, but he can't say which?</p>
<p>Is it the answer that he can make no arrest?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: No, that's not the answer.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: What arrest can he make?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Justice Ginsburg, in this case, the officer could arrest Mr. Parlo, the driver of the automobile, because I think it is universally accepted that we can impute the driver owner of an automobile with the knowledge that he knows what is in his car and he has exclusive control over that which is in his car.</p>
<p>So the officer here should have arrested Mr. Parlo.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And no one else?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Your Honor, I would suggest that perhaps... I mean, and of course, this is not the issue before the Court, that perhaps because of Mr. Smith, the backseat occupant, may also have been arrested given that the nature of an armrest is not really a normal repository that one would place personal items in...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So maybe... definitely the driver, maybe the backseat passenger...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Maybe Mr. Smith.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: but not the one who in fact...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: But definitely...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: who in fact committed the crime.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Definitely not Mr. Pringle, but of course, if we're going to use Mr. Pringle's confession in determining in hindsight, we need not have...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: If this were... if this were a bus or a tavern or a theater or some of the examples, then it certainly would unreasonable to assume that the front seat passenger could reach back to the last row of the theater.</p>
<p>But here, this was a small car.</p>
<p>It isn't hard for somebody in the front seat to turn around and push down the armrest.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Justice Ginsburg, I agree with that... that perhaps it would not be difficult, given the compact nature of this car.</p>
<p>However, there was no testimony that in fact that anyone saw Mr. Pringle do that, number one, and number two...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, that's because they... they didn't have a buy committed in the presence of the officer at the scene.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, I... I understand that, Your Honor.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I mean, I don't know why that counts against...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, my second response would be this, that I think that it would be highly unreasonable that Mr. Smith, the backseat passenger, would allow Mr. Pringle to turn around and store the drugs in the armrest right next to him.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Why?</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Ms. Forster, the Maryland Court of Appeals, which ruled in your favor, says, during the search Officer Snyder seized $763 from the glove compartment, so they are... they accepted that as a fact.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Your Honor, the Maryland... with all due respect, the Maryland Court of Appeals made a mistake in this case because what they said in their opinion...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but no, we take the facts as the lower court found them.</p>
<p>I mean, I don't think it will do to say that the court of appeals is wrong on the facts.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Your Honor, what the court of appeals incorrectly did in this case was... and they dropped a footnote to suggest that it was unclear to them whether or not there was a separate motion to suppress hearing or whether there was a combined motion to suppress trial proceeding.</p>
<p>In fact, that's incorrect.</p>
<p>There was a separate motion to suppress hearing.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But the... but they nonetheless say that Officer Snyder seized $763.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: That's true, Your Honor, and for purposes of Mr. Pringle's position, the fact that that money is concealed, really it makes no difference the amount.</p>
<p>However, if the... as the petitioner and the U.S. Solicitor find the amount to be significant, I think we should have a clearer record.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Why... why did you say the driver, I mean, on your theory?</p>
<p>I think it would be harder for the driver who's driving along to put the bags back in the backseat than it would be for the passengers.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, Justice Breyer, that assumes that the driver did not put it there before he picked up his passengers.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, if he put it there before, wouldn't they all know it was there?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: I don't think so, Your Honor.</p>
<p>If it's... if it's sandwiched between the armrest as it's pushed up against the seat, no, I don't.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But the driver consented to have the car searched, so one might think, my goodness, if he knew there were drugs there, why did he say yes when he could have said no?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Justice Ginsburg, I can tell you as a criminal defense lawyer that defendants consent all the time when they have a car full of drugs and they know the drugs are there.</p>
<p>It's not unusual and it...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: This is not like the... one of the cases that you relied on is the Di Re case.</p>
<p>Your answer to me was, arrest the driver.</p>
<p>There, the informer had fingered the driver, so the police knew that they had the right man when they arrested the driver.</p>
<p>Here, it isn't at all like Di Re because the driver may or may not have been the right person.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Except that... how this case is similar to Di Re is that in Di Re this Court held that if the act... the criminal activity, the ongoing criminal activity, is not visible to the occupants, the mere presence is not enough on which to have probable cause to arrest.</p>
<p>And here we have concealed drugs and nothing more than Mr. Pringle's presence in the front seat.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But there... there's... there's another difference.</p>
<p>The drugs are not locked up in the trunk.</p>
<p>They are at a place where the backseat person could push it down.</p>
<p>There wasn't a serious attempt to hide those drugs securely.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Yes, Justice Ginsburg, I agree with that.</p>
<p>But however, that would only point more closely to Mr. Smith, the backseat person sitting directly next to the armrest, not to Mr. Pringle, the front seat passenger.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, except if... if you accept the proposition that the... that there probably was a roll of bills visible in the glove compartment, Mr. Pringle was within easy reach, not even arm's reach of the rolled bills.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, Justice Souter, the... the problem with that, of course, it's pure speculation, but we don't even know if this glove compartment was locked or unlocked.</p>
<p>What we know is that it was opened by the driver at the time he was asked to retrieve his license and registration.</p>
<p>Whether he had to unlock that glove compartment is not clear at all for the record.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, we... we don't know that and we don't know whether the armrest had come down during the time the backseat passenger was there.</p>
<p>There are lots of things at a probable cause stage that one does not know, but the very fact... if... if we're going to talk... if we're going to find it significant that something is within reach of one of the passengers or not, I would have supposed that for probable cause purposes, the fact that the money was in reach was a relevant fact.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: But, Your Honor, I... I think that if we want to speculate that perhaps then we could say that that would be enough, but probable cause requires far more than speculation.</p>
<p>It requires a fair probability, at least of complicity, and we simply don't have the facts in this case that would support that fair probability with respect to Mr. Pringle, because all the record shows is that Mr. Pringle was present in a car where drugs were found hidden.</p>
<p>And if I may address the common enterprise theory that both the petitioner and the U.S. Solicitor relies on in this case, the problem with the common enterprise theory is that the cases that they cite in support of that involved ongoing criminal activity that was conducted in plain view.</p>
<p>You have the Ulster County case, where the Court found that the weapons, one of which was described as as large as a cannon, that was in plain view of all of the occupants of the car.</p>
<p>And in the Houghton case... so it was reasonable in the Ulster County case, or if that had in fact been the issue in that case, which it was not...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Those I just think that... look, it just doesn't strike me as plausible that when you have three people in a car, one of them would stuff some drugs behind an armrest where they're very easy to find, unless he thought the other two were in on it, I mean, unless you thought the other two at least didn't care, and if they didn't care they're out there transporting the drugs with them.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So... so how... I don't even know, I mean, what I'm struggling for is, that seems like a reasonable inference so how... how do I know, I mean, I'm making this kind of inference.</p>
<p>How do I know whether I should or not?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Justice Breyer, the inference that the backseat passenger may stuff the drugs in the armrest...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Any of the three, I mean, any of them might, and why would they?</p>
<p>Why... you'd have to be crazy to be stuffing crack into a car like that without thinking your friends are... have... don't give a damn at the very least...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: But certainly...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: and probably are in on it.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But certainly, I think that even if they... he does that in the view of Mr. Pringle, that... so that Mr. Pringle has knowledge that the drugs were shoved in the armrest... that certainly does not also go to the next level, which is that Mr. Pringle possesses those drugs.</p>
<p>I may see one... a passenger...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Would... would... would the... the officer at that point then be able to say, ah, but, in any case I could arrest the other two because they're harboring a felon?</p>
<p>In other words, you said that you could maybe arrest the ones who sitting next to the... the other, since the drugs are barely concealed?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, no, Your Honor, I... perhaps I... I was not clear.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Here's what she's thinking, and there might be a million different crimes.</p>
<p>You say to the front seat passenger, everything's the same, but you say to the front seat passenger, Mr. Front Seat Passenger, did you know that there were drugs down there in the armrest?</p>
<p>And he says yes, and that's all he says.</p>
<p>I would imagine he could be arrested then, couldn't he?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: No, Your Honor, I...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You couldn't arrest him then?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: I don't think he could be arrested.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: For transporting the drugs or helping to transport them or being an accessory or doing something?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, certainly if he's the front seat passenger and not the driver he's... he's along for the ride.</p>
<p>He's not necessarily the person transporting...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, he doesn't say anything.</p>
<p>We don't know anything about it.</p>
<p>He just says, sure I knew there were drugs back there, that's all.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Under those circumstances, Your Honor, I think you'd have a much closer case.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, no, but... but no, look, either there is a crime of being in a car knowing that or there isn't.</p>
<p>Is there or not?</p>
<p>I don't know.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, the crime of possession requires not just knowledge, but it also requires the intent to exercise dominion and control over the drug.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right, so... so you'd have to then make an inference that a person who says, yes, I knew the drugs where there, was also going to help later on.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Yes.</p>
<p>That would...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: All right.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But that's...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: there would have to be some reasonable inference...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And you think that's not reasonable either?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: I think it is not just on those facts alone.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Okay.</p>
<p>Am I right in assuming that the other two people in the car didn't testify at the suppression hearing?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: No, they did not, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Or at the trial?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: No, Your Honor, nor at the trial.</p>
<p>Only Officer Snyder testified at the motion to suppress hearing for the State.</p>
<p>If I may go back to the common enterprise theory, as I said, the cases that the State and the U.S. Solicitor rely on here involved criminal activity conducted in plain view, and... which, from which an officer could reasonably infer, I think, a common nefarious enterprise.</p>
<p>We have a... less than one gram of cocaine in this case that is hidden, hidden, concealed in the backseat armrest, and secondly, again, with respect to this being a commercial quantity of drugs, there is simply nothing in the record that supports that.</p>
<p>This was...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, it was in separate little packets, right?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Yes, it was, but that, again...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: A kind that people would buy for a single dose?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: That, again, your Honor, is not inconsistent with personal use, and certainly I should think that if this police...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yeah, and one of their charges was possession, was it not?</p>
<p>I mean, we're not dealing only with intent to distribute but...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: That... that is correct.</p>
<p>The charge was possession...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Pure possession is what...</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: and possession with intent.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, to say it's not inconsistent with personal use, I don't think gets your client totally off the hook, because something can be both consistent with personal use and consistent with commercial intent.</p>
<p>You know, something can... you can infer both ways.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: However, Justice Rehnquist, here this amount is not indicative of an operation that requires the participation of more than one person.</p>
<p>This is an amount that, if it's for sale, it's for sale...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But... but how about the combination of that with the... with the $763 roll in the glove compartment?</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Well, Your Honor, I think then it would still require speculation on the part of this police officer to assume that one was connected to the other.</p>
<p>I think that the only common enterprise that reasonably could have been inferred from the facts of this case is a common enterprise to go from one destination to another and nothing more than that, and given the concealed nature of the drugs in this case, the lack of any suspicious activities on Mr. Pringle's part, and the lack of, I think, any reasonable inference pointing to complicity that he possessed the hidden drugs, the Maryland Court of Appeals in this case correctly held that there was no probable cause to arrest Mr. Pringle, and this ruling should be affirmed.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Forster.</p>
<!-- nancy_s_forster--><p><b>Mr. Forster</b>: Thank you.</p>
<p>Rebuttal of Gary E. Bair</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. Bair, you have 4 minutes remaining.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Thank you, Your Honor.</p>
<p>I just wanted to first clarify any record inconsistencies or... or clarifications that might be in order.</p>
<p>I believe that the court of appeals' opinion, which is at appendix page 3A to the petition for cert, makes very clear that the court of appeals, the highest court in Maryland, construed the record as the officer seeing a large amount of money rolled up in the glove compartment, and it totaled $763.</p>
<p>That is clearly stated in the court of appeals' opinion, and I would direct the Court's attention to the trial transcripts at pages 83 to 84.</p>
<p>It is not in the joint appendix but it is in the record in the case, the trial transcript pages 83 to 84 from the trial on April 10th of 2000.</p>
<p>The police officer who arrested respondent testified at the trial that he saw a large roll of money in the glove compartment and that it totaled $763, so clearly there is record support and the court of appeals so found.</p>
<p>With regard to the glove compartment being closed or locked, there's nothing in the record ever indicating that the glove compartment was locked.</p>
<p>I think the only natural inference from this record is that it was closed at the time the car was stopped.</p>
<p>The officer saw the drug... excuse me... saw the money in the glove compartment when the driver went to retrieve his vehicle registration, and then after the officer obtained consent to search the car, he then opened the glove compartment again and seized the money.</p>
<p>I think it's ironic that the rule that is being suggested by respondent is the bright line rule that the driver should always be arrested.</p>
<p>I think that's absolutely inconsistent with this Court's Fourth Amendment law.</p>
<p>In closing, unless the Court has any questions...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yeah, I do have one...</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: which is, I think she said, look, there are three possible inferences.</p>
<p>One is that the passenger had nothing to do with it, didn't know about it.</p>
<p>Two is, everybody knew about it but that's all.</p>
<p>And three, they knew about it and wanted to help sell the drugs.</p>
<p>All right.</p>
<p>Now, she says, one plus two are so great that three isn't probable cause, but about, at least two.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Your Honor, I think all... the nature of probable cause is that the officer is entitled to accept under the totality of the facts any of those inferences.</p>
<p>I think any... any...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Two... two isn't a crime, I mean, if they just all knew about it?</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Under Maryland law, they have to have an intent to exercise control over the drugs.</p>
<p>If they simply knew about it, that would not be enough for a conviction, but I think...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: It has to be all three... it has to be three is great enough, so despite one plus two... okay.</p>
<!-- gary_e_bair--><p><b>Mr. Bair</b>: Yes, but I think for probable cause purposes, clearly that would be sufficient.</p>
<p>Thank you, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Bair.</p>
<p>The case is submitted.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: The honorable court is now adjourned until tomorrow at 10 o'clock.</p>
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Attribution:&nbsp;</div>
The Oyez Project </div>
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Featured:&nbsp;</div>
No </div>
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Fri, 09 Jan 2009 14:49:05 +000056757 at http://www.oyez.orgAtwater v. City of Lago Vista - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2000/2000_99_1408/argument
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Case:&nbsp;</div>
<a href="/cases/2000-2009/2000/2000_99_1408">Atwater v. City of Lago Vista</a> </div>
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Related Transcript:&nbsp;</div>
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Transcript:&nbsp;</div>
<p>Argument of Robert C. De Carli</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument now in Number 99-1408, Gail Atwater v. The City of Lago Vista.</p>
<p>Mr. De Carli.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Mr. Chief Justice, and may it please the Court--</p>
<p>Reasonableness is the touchstone of the Fourth Amendment.</p>
<p>The court of appeals below, however, announced a broad new rule that permits custodial arrest for any offense committed in an officer's presence regardless of the nature of that offense.</p>
<p>The court of appeals in doing so ignores the Fourth Amendment's requirement of reasonableness.</p>
<p>First, it ignores the fact that a common law at the time of the Fourth Amendment's adoption such an arrest would not have been lawful.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, why would the common law be involved here Mr. De Carli if Texas law says otherwise?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Mr. Chief Justice, the common law should be considered because it is our position that the Fourth Amendment incorporates the protections, the restrictions on arrest that existed at the time of the Fourth Amendment's adoption.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but you're arguing here that this offense should not have led to a custodial arrest, now as part of that argument has to be a condition of Texas law, isn't it?</p>
<p>I mean if Texas law had authorized a custodial arrest for this, wouldn't your case be different?</p>
<p>If you conceded that it authorized it?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: No, Your Honor, because it is our position that the Fourth Amendment restricts the use of custodial arrest for minor offenses such as this.</p>
<p>If Texas were to increase the penalty for this offense, then it would be a different balancing.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Even with a warrant you couldn't do a custodial arrest?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: No, but let me qualify that.</p>
<p>It would be a much weaker argument, one we would lose the common law argument.</p>
<p>Two, however, this Court... we're well aware of this Court's respect for warrants and the fact that interjecting a neutral and detached magistrate operates as a check.</p>
<p>However, the fact is, by requiring a warrant, still that would only require probable cause and it's our position that probable cause does not sufficiently balance the competing interest, although I concede it's a much, it would be a much weaker argument--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: See, my problem is with your common law argument because the Fourth Amendment does not contain a warrant requirement, it just says if you do have, get a warrant, it has to be based upon probable cause, blah, blah, blah, blah, but the only root requirement of the Fourth Amendment is that the arrest be reasonable.</p>
<p>You're telling me that you could do arrests at common law, so long... at least so long as there was a warrant.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --That's correct, Justice Scalia, and for that reason we say--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why would a warrant make it more reasonable?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Because, Your Honor, it would interject a neutral and detached magistrate who we would hope would say Officer Turek, why are you arresting this woman for not wearing a seat belt?</p>
<p>Why do we not issue a summons.</p>
<p>Why not issue just a traffic citation.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Would that be a magistrate's prerogative ordinarily?</p>
<p>Isn't it a magistrate's prerogative to find probable cause.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Yes, Mr. Chief Justice, and for that reason I'm willing to concede that if a warrant were obtained, this arrest still would be reasonable.</p>
<p>Our position is that probable cause, although it works as a balancing of the competing interest of law enforcement and the individual in some instances, in the setting before the court and in most traffic offenses, it does nothing to balance the competing interest of the individual.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: What about the situation of a traffic violator, maybe parking tickets or maybe seat belt use, who continues repeatedly to refuse to use a seat belt or to pay the parking fee when parking a car and has a whole string of tickets for it?</p>
<p>Does there come a time when due to the repeated nature and in the case of seat belts possible endangerment of children that the state can say, okay, custody here is required, this person just won't cooperate?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Justice O'Connor, I believe that time would come when, if I understand you correctly, you're alluding to nonappearances, the repeat offender.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, it's possible that a nonappearance could amount to something that generates jail time, but I'm just talking about the repeat offender.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Okay.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Without an offense that requires jail time.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Without the nonappearance problem.</p>
<p>What that raises is it's the distinction between punishment and enforcement.</p>
<p>Punishing the repeat offender is not the role of the police officer, that's the role for a judge or a legislature that has provided heightened penalties.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Not punishment, a concern for highway safety.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Well, Your Honor, the thing is, even the repeated, the fact if there are repeated penalties and there is no heightened penalty, well then the legislature has made a determination that on the balance that does not regard that aspect of highway safety is that sufficient to justify the intrusion.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I notice that Judge Weiner in the case below had a suggested approach, a different approach, that when there's a plausible articulable reason for affecting such an intrusion, it's lawful.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Yes, Your Honor, and I read that as trying to encompass what this Court in its opinion issued last week referred to as vehicular bound imminent threats to life and limb which would be driving while intoxicated, driving under the influence of drugs or alcohol.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Oh, presumably that can generate jail time.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: In some cases.</p>
<p>In most cases, however, I believe that in some jurisdictions still first offense drunk driving there is no jail time.</p>
<p>So I would still, we would still argue it would be reasonable, because some of those offenses driving intoxicated and reckless driving amount, in essence, to breaches of the peace, they are by their nature violent, they impose a threat.</p>
<p>They threaten the health and safety of others on the road directly and I think--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Does repeated nonuse of a seat belt for minor children constitute a threat to safety?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Justice O'Connor, I think it would be a closer question, but I would still defer to the fact that if the legislature has not increased, has not provided for heightened penalties, for repeat offenders, repeat nonuse of seat belts, that still it is not that limited category of offenses that impose an imminent threat to life and limb on the road.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: When you say... go ahead--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: --Suppose in this case the driver was from another state, could there have been an arrest made.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: No, Your Honor, and let me explain why.</p>
<p>One, states have already provided for that kind of situation in the uniform violator compact act where if somebody does not appear, then their license can be revoked in that other state.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So the risk of nonappearance is not part of the balance that you want the police officer to--</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Well, Justice Kennedy, I think the approach to that, there already is a way of dealing with that and that is if a party does not appear, then that's a separate offense, there is a penalty provided for that, a warrant may be issued for that person's arrest, and they are then subject to punishment for that additional offense.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: --Can a police officer in an out of state case use the time honored tradition of giving you a police escort to the station where you pay your fine?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Your Honor--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: That's a stop, it's a seizure of sorts.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --The problem that we--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: That's sort of an old tradition in some of our states.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Well, it depends... the problem with that approach is it leads to, and in part what respondents, respondents have implicitly made this argument that this was a brief arrest.</p>
<p>Ms. Atwater was helped into the police car.</p>
<p>What that leads to is it's distinguishing between the degrees of the custodial arrest, even though once that person is removed from the scene, the safety of their car, once under custodial arrest, their life... or excuse me, their liberty and property interests are completely forfeited.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. De Carli, a moment ago you said you thought perhaps reckless driving might be a breach of the peace.</p>
<p>Is that a term of art, breach of the peace?</p>
<p>The briefs indicate that there's considerable differences to what it meant at common law.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Mr. Chief Justice, it is clear at common law that breach of the peace when used in the context of the law of arrest referred to a group of offenses that either involved violence or the type of conduct that would incite immediate violence.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The opposing briefs suggest differently.</p>
<p>But I recognize also that your briefs also have supporting authority.</p>
<p>I'm just not sure whether that's too happy a distinction.</p>
<p>What should turn on breach of the peace which is basically a common law concept.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Well, Mr. Chief Justice, I believe that if we look to, again the decision of last week, and other decisions of this Court, Delaware v. Prous, I guess Sitz would be an example, there are certain offenses, in the context of the traffic offenses where by their very nature they impose a grave risk of harm to others on the road.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What if Texas here had said that this particular offense was, you know, that it could be 10 days in jail or 300 fine?</p>
<p>Could the officer have done what he did here?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Mr. Chief Justice, it would be a much closer case then.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Could you answer... answer yes or no and then explain.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Well, let me, part of my vacillation is in... we proposed a rule, in looking back at that, I now wonder, well, perhaps the correct approach would be to rely exclusively on the common law.</p>
<p>The common law provided a clear boundary, breach of the peace, nonbreach of the peace and felonies.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: The common law as of what date.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: As of the adoption of the Fourth Amendment which would be 1791.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What is your answer to the Chief Justice's question, yes or no.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Unless there were... the answer would be no.</p>
<p>I'm sorry.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What do you make of the nightwalker statute argument that at the same period in which you're arguing there was at least a threshold of immunity set here, it was clear in English law that nightwalkers who were not breaching the peace in your sense could be arrested.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Justice Souter, I think the correct, I believe the correct way to look at the nightwalker statutes is this was a time before any lighting, anybody that was walking about in the dead of night it was reasonable to presume that that person was a felon, until--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yeah, but the fact that the person was a felon, even that he intended to commit a felony, is that what you mean?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Well that the person may have committed a felon or they were up to no good.</p>
<p>Nobody walking about in the dead of the night in the 17th century was doing anything other than contemplating criminal acts.</p>
<p>I think at the... that's the way I understand the nightwalker statute.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: They didn't have insomniacs back then?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: I think Justice Kennedy they stayed indoors because it was too dark.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: You answered the Chief Justice's question that if the state had said we regard not buckling up as very serious, therefore 10 days in jail, then you would have no case to complain about a custodial arrest for that, is that so?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Well, Justice Ginsburg, again, it depends on, our case is a core case, I mean it falls under the rule the common law end of any balancing--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But I'm just asking you the question.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Yes.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Is it just... so a seat belt in one state could be one thing if the state chooses to make it a more serious offense, and another thing in another state?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: If the line is drawn not based on the common law but as we had proposed in our brief the jailable versus fine only distinction.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Now here in this very case, could the officer have said, child endangerment is a felony, so it's not simply the misdemeanor of not buckling up, but you've put your children in danger and therefore the offense is child endangerment which is a felony.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Several responses to that Justice Ginsburg.</p>
<p>First, in that instance, probable cause, if the arrest were based on alleged child endangerment there probable cause would act as a restraint because the police officer to justify the arrest would have to establish a certain degree of certainty that the specific conduct was child endangerment.</p>
<p>Now, this was not child endangerment for several reasons, one, the legislature has imposed an extremely minimal penalty, two, it's not child endangerment because you are set... by virtue of the fact that if we were to call this child endangerment then not using your turn signal or perhaps speeding or running a red light, those are just as close to any possible harm as not wearing a seat belt.</p>
<p>There's a causation problem, in other words.</p>
<p>And most importantly is that by, if we truly are concerned about the welfare of the children, then arresting the mother and taking the mother away is inflicting a far greater harm on those children, and it's doing--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, the facts here are very unattractive.</p>
<p>I mean one doesn't like to think that a mother is going to be stopped for not wearing a seat belt and have her children in tears in the car while the mother is hauled off to jail.</p>
<p>You've got the perfect case.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --We'd like to think so Justice O'Connor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But I think what we're concerned with is the broader rule because it has millions of permutations and applications across the country.</p>
<p>And conceivably the Fourth Amendment at bottom does always require a kind of reasonableness test, and that's why I thought Judge Weiner's approach might make a little sense here.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: It might.</p>
<p>I mean the extraordinary no arrest for fine only offenses absent an articulable fact that explains why an arrest would be justified.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So what do you think, Bob, it seems to me that the strongest argument against you has nothing to do with this case, it has to do with the police officers being human.</p>
<p>They say to the police officer, look, if somebody commits a crime in your presence you can arrest them.</p>
<p>But you can't use... do an unusual thing, you know, you can't use excessive force, et cetera, but as long as you behave in a normal manner, crime, you see it, arrest them.</p>
<p>Anyone can understand that.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And the problem with your side and the people who are supporting it is are they coming up with something that works?</p>
<p>I mean, a policeman isn't going to know the common law or breaches of the peace.</p>
<p>A police... they're just not going to understand that.</p>
<p>So is there some kind of practical alternative to this simple rule which has in it a way of catching abuses through the nonnormal behavior.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Justice Breyer, I really do believe that in the context of traffic offenses, and I'll explain a little bit later why it's valid to limit a holding or a rule to traffic offenses, it is not all that complex because there are only a few offenses that... in which, most of which this Court has identified in other opinions where the arrest... where the use of a custodial arrest would indeed further enforcement, I mean, I guess one, drunk driving, driving while intoxicated, reckless driving, closer arguably the unlicensed driver, although--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Speeding.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --No, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: No what.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: No, Your Honor, speeding... it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving.</p>
<p>And that's where you have the same probable cause determinations.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What if the state does think that--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: --What if the speeder is from another jurisdiction?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: I'm sorry.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What if the speeder if from another jurisdiction?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Your Honor, oh, Justice Stevens, again, that returns to the response I believe I gave to Justice O'Connor or Justice Kennedy that in essence respondents seek a prophylactic rule in that we are to cede discretion to arrest to police officers on the chance that people from another jurisdiction are going to run away and not pay their fine.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I think that's a standard rule for policemen to stop motorists and state if you're from out of the jurisdiction you either pay the fine now or follow me to the courthouse.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: But Justice Scalia--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I'm quite sure that's standard procedure in any number of states.</p>
<p>And you say that's all bad, you just have to say, well, hope you come back to Wyoming someday.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --It's... Justice Scalia, I think the reason why it's, I mean if we're looking for a bright line rule, the problem that permitting a custodial arrest in that situation would lead to is, if we say, okay, out of state person, he's not going to come back to Wyoming, high risk, if you allow the arrest, then what that means is the person is potentially held in custody before a probable cause--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I hate to constitutionalize all this thing, everything becomes a constitutional case.</p>
<p>Is there a police chief in Lago Vista?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Yes, yes, Justice Scalia.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Is he elected?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do his constituents think it's a good idea for his officers to arrest women for not having their kids in seat belts.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: My understanding is there is a deep divide in the community regarding the issue.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But he's not in the case anymore and that raises another question, given the division of the judges, it's really interesting, the district court thought your case was frivolous and then five judges on the court of appeals thought it was very serious.</p>
<p>But isn't it almost certain that this Officer Turek would have qualified immunity given... how could one say that the law was clearly established given the division among the Federal judges.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: I have three responses to that, Justice Ginsburg.</p>
<p>First, the Fifth Circuit clearly did not address that issue, the en bloc majority.</p>
<p>They explicitly refrained from making that determination.</p>
<p>But second, even though, yes, it is conceivably... it would be a tough hurdle to overcome with regard to Officer Turek.</p>
<p>However the city still is in the lawsuit and Judge--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But the police chief isn't.</p>
<p>He's been dismissed and you're not challenging that.</p>
<p>If you're relying on a practice or policy of the city to hold the city, where would that policy or practice have come from other than the police chief who has been dismissed?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --My understanding is that the... if it were to be remanded back to the Fifth Circuit, if this Court were to find a Fourth Amendment violation, the Fifth Circuit majority never addressed that... those specific issues, but it would still be live against the city based on the finding of Judge Sparks that there was a policy on the part of the city.</p>
<p>The city had this policy.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Which judge made that.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Judge Sparks, Judge Sparks in the... I guess it would be Appendix... the third Appendix basically stated that it was a... a policy was established.</p>
<p>A policy was established, but no constitutional violation had been established.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: This is the judge who thought the claim was frivolous.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Yes, but Judge Sparks is a good judge.</p>
<p>And I think part of that resulted from the trial counsel, frankly.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Mr. De Carli, let's assume that I don't find your constitutional argument conclusive, at this point I'll be candid to say I'm not sure how to assess it.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But I assume that I don't find it conclusive.</p>
<p>One of the things that I would like to know more about if we have to engage in a reasonableness determination here in setting a standard, is how bad the problem is out there.</p>
<p>And one of the things that I know both, I forget whether it's from your brief or from the brief on the other side, in a number of jurisdictions in which arrests for misdemeanors without any distinction, and arrests for even the more minor offenses, some states called them violations, the submisdemeanor, but technically criminal offenses, is permitted without warrant if committed in the officer's presence.</p>
<p>And the commonness of the practice leads me to question how many horrible cases like this one are there out there?</p>
<p>Are we faced with a case in which the facts indeed are about as good for you as I think, you know, they could be, but are we, by the same token, faced with a case which is very rare and should not be the basis for constitutionalizing a general rule?</p>
<p>How big is the problem.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Justice Souter, I've tried to determine how big the problem was by going to the Department of Justice, which of course provides the most authoritative statistics.</p>
<p>Unfortunately, they don't address the issue.</p>
<p>However, anecdotally, there, you know... well, just a few weeks ago we saw the young girl arrested for not... for eating french fries in the substation.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Where did we see this?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: In the District of Columbia, I believe.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I hadn't seen it myself.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: I'm sorry.</p>
<p>It was in the--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I didn't see it.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: He immerses himself in these briefs.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --And that's good.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: It's not a constitutional violation for a police officer to be a jerk.</p>
<p>And what we're trying to do is define whether there are some rules that we can work with.</p>
<p>And yours seems to me so amorphous, and the brief of the respondents summarized four or five different tests being given by the amicus briefs and they're all different.</p>
<p>And you're not even clear that your own tests... you say on reflection this is adequate--</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Well, Justice Kennedy, all of the tests provided by petitioners and their amici are actually remarkably similar in that they all recognize that there should be a limited amount of discretion for those close cases, however, we can carve out whether that be through offenses that involve... of imminent threat of harm.</p>
<p>Or if we call it a breach of the peace.</p>
<p>Or if we draw a distinction between fine only and jailable, lines can be drawn.</p>
<p>That's one point.</p>
<p>To get back to Justice Scalia's comment about the fear of the problem of constitutionalizing everything, I refer to Justice Story's comment that the Fourth Amendment was indeed an embodiment of the common law.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --What about deterrence?</p>
<p>Don't you think people are going to be pretty unlikely to eat french fries on the subway in Washington.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: That's correct, Justice Scalia--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And maybe in Lago Vista, not to belt up their kids?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --Yes, but the problem--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well is that worth nothing?</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: --No.</p>
<p>But that is confusing punishment with enforcement.</p>
<p>Deterrence is a justification for punishment.</p>
<p>And police officers should be enforcing laws and not punishing.</p>
<p>Mr. Chief Justice, if I may, I'd like to reserve the remainder of my time.</p>
<p>Argument of Roger J. George, Jr.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. De Carli.</p>
<p>Mr. George we'll hear from you.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Mr. Chief Justice, and may it please the Court--</p>
<p>The problem we're facing on the Fourth Amendment has to include both the seizure and the scope of the seizure and the nature of the seizure.</p>
<p>And I want this Court to pay particular attention to the Texas statutory scheme, because the Texas statutory scheme is remarkable in that in traffic violations particularly, as opposed to other kinds of violations, it provides very explicitly that once an officer makes the decision to arrest, as opposed to giving a citation, that officer must immediately and the word in the statute is immediately, take the accused before the nearest magistrate and to have that magistrate determine whether or not the person should have to put up a bond or be released on their own recognizance.</p>
<p>That system is exactly the system that is in my opinion specifically authorized by this Court's opinion in U.S. v. Watson, if you read the specific footnote 11 in that opinion, that is the specific kind of procedure that was authorized by this Court.</p>
<p>It has the advantages that is the tradition in this country, at least since we've had automobiles, that in rural Texas, where I'm from, the fact that you get... run a red light in El Paso, and you're from Brady, doesn't... the people in El Paso are somewhat concerned that they'll ever see you again.</p>
<p>It's a little easier to do something about it in today's world of computers and instant, relatively instant communication.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Mr. George, can I just ask sort of a general question, why wouldn't that interest, and obviously you're certainly entitled to arrest somebody who's about to flee the jurisdiction or something like that, but why wouldn't that interest be accommodated by the statement of Justice Weiner, Judge Weiner in his dissent?</p>
<p>There's got to be some reason, any reason, as long as it's plausible and relates to the problem.</p>
<p>And the reason there is obvious the guy may not show up to pay the fine.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: I believe the problem with Judge Weiner's appointment is the problem of being too unclear as to exactly what kind of reasons are good enough reasons.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: It's about like a Terry stop, that's pretty... if there's a particular articulable reason to suspect there's a problem here you can make a Terry stop, I don't see that it's that different.</p>
<p>That seems to work.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: It does work in the Terry stop situation and we can--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Why wouldn't it work here?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --You can argue it was here.</p>
<p>I mean this man's... if you look at page 422 of the record, his police report says I just stopped her a few weeks ago for the same violation.</p>
<p>That's disputed fact.</p>
<p>But that's what he articulated.</p>
<p>And your concern about the repeat violators was at least written on the contemporaneous repeat offense report.</p>
<p>It's important--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I'm not asking about this case.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --I understand that.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I'm asking about an appropriate workable rule.</p>
<p>And I want to know why the Weiner formulation in your view is unworkable.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: I think... well, I think it leads to the same problems that we've had to some extent in this Terry stop rules.</p>
<p>Some rules, because it has to be coupled in my opinion with this instant immediate appearance before somebody else to make the decision.</p>
<p>In this case Judge Thompson in Lago Vista agreed that some bond was required here.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I'm not sure that a proper articulable rule... do you think that an acceptable articulable reason is that there's a breach of the peace in the more narrow sense?</p>
<p>You know, the guy's really annoying people and getting boisterous and what not.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: No.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Because I mean it seems to me you don't necessarily have to take him in to stop that.</p>
<p>You could go over and tell him, you know, you got a fine and if you do it again you're going to get another fine.</p>
<p>That might shut him up right away.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: I absolutely agree with that.</p>
<p>And I don't think this Court has, at least if you read U.S. v. Watson, New York v. Payton, Judge White, Justice White's dissent in Welsh v. Wisconsin concurred in by the current Chief Justice all indicated as did the American Law Institute's model code referred to in U.S. v. Watson, all provided that the rule for arrest was, I see the person do it, in fact the ALI rule was, I saw a petty offense happening in front of the officer.</p>
<p>In this case, there were five such offenses, driving without the seat belts, no driver's license--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Their suggestion is there be another rule.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --I understand.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And the other rule would be what Justice O'Connor just said.</p>
<p>And so my question would be the same, what's wrong with that?</p>
<p>I thought frankly your answer to that would be what is the set of arrests to which that rule applies.</p>
<p>And then I was going to suggest the set of arrests that are punishable by fine only.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Well, I think that the same reason that there's something wrong with that--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Now, what's wrong with that.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --Well, it assumes that the officer knows enough facts at the time to make a determination of what the crime will ultimately be charged.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, as long as the officer has to have, doesn't the officer can arrest him only if he thinks he's breaking the law.</p>
<p>So you say Mr. Policeman, what law was he breaking.</p>
<p>And the policeman has to understand that if it's a law that's punishable by a fine only he has to have some reason for arresting the person rather than just citing.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Well, as this Court decided not to adopt that rule in Berkimer.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: My question is why not.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: The answer is, because for example, much conduct can be both felony and misdemeanor.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, that's absolutely fine, if the policeman thinks, forget felony/misdemeanor, I agree with you that felony/misdemeanor is not a workable rule.</p>
<p>I don't know if others do or not.</p>
<p>But felony/misdemeanor falls into the problem that different states define misdemeanor differently and it's so complicated nobody understands it.</p>
<p>All right.</p>
<p>So that's why I asked the rule that's been suggested by others, it's not mine originally, that if it's punishable by a fine only that's where Justice O'Connor's principle kicks in.</p>
<p>Now, what would be wrong with that?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Because... same reason.</p>
<p>They don't know enough facts.</p>
<p>For example, in Texas--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Is that your only reason, Mr. George, just that you're willing to argue this out on a case by case basis?</p>
<p>I thought part of your argument was that when it says unreasonable seizures in the Constitution it has something in mind and doesn't leave it up to this Court to sit back and decide what's reasonable and unreasonable.</p>
<p>I thought your argument was based on the fact that this has never been understood to be the constitutional rule.</p>
<p>There has always been authority for the... for policemen to conduct arrests of this sort.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --Absolutely.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Which, if they're abusive, the sheriff won't get reelected.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: That's exactly the basis of my argument.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why don't you put that as your first line of defense and then argue on the, you know, on the--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --If by chance the first line of defense was breached.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Mr. George is trying convince of us that that's the reason--</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Thank you Justice Scalia.</p>
<p>Returning to Justice Breyer.</p>
<p>If the first line is breached, let me return to that response.</p>
<p>The problem is illustrated by public intoxication in Texas as in other jurisdictions.</p>
<p>The number of offenses, the times you have done it changes the penalty.</p>
<p>No way to know on the roadside whether this is the first time or the fourth time, if it is the second time in Texas, you go to jail.</p>
<p>I mean it's punishable by jail.</p>
<p>If it's the first time, it's not.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --The answer is, if you don't know, you have no articulable reason.</p>
<p>That's the answer.</p>
<p>That's easy.</p>
<p>If you don't know, you don't arrest.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: The burden is on the officer to be certain that it is the second offense or the third offense, whatever is necessary.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Yes, Justice Souter, that... Justice Breyer asked me why... what's wrong with the jail versus fine distinction.</p>
<p>And in my view it is to put the burden on the officer requires too much of the officer and of course I have my first line of defense again, that is, that has never been--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I know, but in that instance why can't the officer just radio in?</p>
<p>We have John Doe, he's intoxicated, does this guy have a record?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --This Court's opinion in Arizona v. Evans in which the communications to the station and the computer system and they called down and they said he has an outstanding warrant but it turned out he didn't have an outstanding warrant.</p>
<p>The problem is it assumes that in rural Texas or in other parts of this United States that there will be effective, prompt and accurate communication to--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, then you're going to have the same problem when he goes before the magistrate in this little town.</p>
<p>They still don't know anything.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --I understand.</p>
<p>But you have an independent nonadversarial determination of what the terms of release ought to be, because we're only talking about whether to release people on their own recognizance for appearance at trial as opposed to requiring some sort of financial security for those people to appear at trial.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Yes, but Judge Weiner's rule, it's important to keep in mind, it only kicks in if it's a fine only offense in the first place, but if there is a reason such concern about appearance at trial, bingo, you're protected.</p>
<p>I mean these situations do fall into certain large categories, one is the out of town speeders, you could always haul him to the station house, that's been settled for years and years and years as Justice Scalia points out.</p>
<p>But what about those where there's absolutely no plausible reason for saying I have to make a custodial arrest here.</p>
<p>Will you give the officer total absolute discretion just because he doesn't like the person or something of that nature?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Well, the discretion of the officer, the answer is no there's not absolute discretion because there's the limits of the equal protection clause, there's other kinds of constitutional limitations.</p>
<p>He can't go around arresting only black people or Asian people or some other kind of arrangement, he cannot--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Or women with small children.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Can they be held for 48 hours as other arrestees can or do they have to be, do you acknowledge that that's part of your rule that he really does have to be brought before a magistrate immediately.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --Not in Texas, they can't.</p>
<p>If I were in your shoes I would have agreed you for this case in County of Riverside v.--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But that wasn't the decision.</p>
<p>People can be held a long time.</p>
<p>What happened to the arresting officer in this case?</p>
<p>Do you defend that as a reasonable decision?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --In this case?</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: On the basis, we're here on a summary judgment where he has never been deposed and all we have is arrest reports.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Right.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: So the only thing I have is his arrest report.</p>
<p>And on the basis of his arrest report, he says that he was... she had violated the same statute and he was concerned.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Even knowing it was a mother with two small children in a small town and what happens to the children?</p>
<p>I mean this is kind of an amazing case, but you think that's fine.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: Well, it would be a lot better that the children have to deal with having their mother taken before the magistrate than having to deal with the brain damage if they had... she had stepped on the brake five minutes later, five minutes later, would that 5-year-old standing up in the front seat of a pick up and she steps on the brake, it is a very serious incident, even at 15 miles an hour, assuming that was the actual speed.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You don't have to think it's fine to think it's not unconstitutional, do you.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: No, as I understood--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: There are a lot of really stupid things that aren't unconstitutional.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --Being a jerk is not unconstitutional.</p>
<p>And assuming that Officer Turek is a jerk, let's just give them that position, and he was a jerk in this instance, that does not create a constitutional violation.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: It's true, in trying to think this through, and I'm having a difficult time working on this and I'm trying to think it through, and it seemed to me the strongest argument against the Weiner position is that it would lead to writing volume 7 of the treatise on the Fourth Amendment which would have an infinite number of rules in it about when the Terry stop type justification is enough or isn't enough.</p>
<p>And rather than write... it seems to me we ought to reserve that for there being a real problem.</p>
<p>But is there a real problem here?</p>
<p>That's why anything you could say in respect to the, what you've read, in doing research for this, as to the scope and nature of the problem in general would be helpful to me.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: No, there is no real problem.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I know you think that, but I wondered if you've come across some things that you could refer me to.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: No.</p>
<p>The only things we have come across are the racial profiling issues.</p>
<p>We have the New Jersey experience and we have some of the amici on the other side presenting that problem to this Court and this is a prophylactic solution to racial profiling because you never have custodial arrests for traffic violations.</p>
<p>It is our judgment if that is the problem, if that's the only problem presented here, we deal with that problem by dealing with the equal protection violation it presents rather than creating, in my opinion, a whole lot more work for this Court and the lower Federal courts on deciding what the appropriate standard would be for this new variation away from probable cause.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Mr. George, one of your arguments is the difficulty of administration argument, and you said earlier that when we're dealing with a level of offense in which it may be difficult to tell on the side of the road whether this would be subject to arrest or not subject to arrest, the... in effect the benefit of the doubt should be given to the officer and we shouldn't come up with a rule that in effect would penalize the officer.</p>
<p>But why should the benefit of the doubt be given to the officer?</p>
<p>Why should the burden of uncertainty, if we're going to draw a line, be a burden that falls on the police rather than... a burden that falls on the citizen rather than on the police?</p>
<p>Why would she make that choice?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: My first response is that probable cause has been the line that's drawn on all crimes in this country since 1791.</p>
<p>And that is... ought to remain the line because it has worked.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I realize that.</p>
<p>But you were making a different argument when you addressed the possibility of drawing the line differently, your response to that was that may be difficult in some cases, and the burden of that difficulty should not fall on the police.</p>
<p>And my question is, assuming a different line were to be drawn, why should the burden fall on the citizen rather than the police?</p>
<p>Why shouldn't we simply say, look, if it's going to be... if there's any question about applying this line, we'll assume that the burden of doubt should be for the benefit of the potential arrestee rather than for the benefit of the police?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: The answer is, because the difficulty of articulating all the reasons that would be adequate.</p>
<p>Now, we can have a--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But that's the premise of the question.</p>
<p>We're assuming that the reasons would be hard to articulate.</p>
<p>But assume that we feel there is a need on reasonableness grounds to draw such a line, why isn't the answer to the uncertainty of application the answer that was suggested earlier, and that is if the police are not certain in applying this rule, that they have a right to arrest, they should not arrest, and that's the answer to the uncertainty problem.</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: --Truthfully, I see no reason, if you're going to go down the road of trying to carve out some other exception to probable cause, that the burden of proof not remain on the government.</p>
<p>The burden of proof is... on probable cause is that the police officer has to be able to... there has to be objective facts that would cause probable cause, a specific violation of a specific statute.</p>
<p>The Terry stop, we put the burden on the government.</p>
<p>If it's burden shifting, if we're going down this road, if this Court should determine that there needs to be a new volume five for the Fourth Amendment jurisprudence and that this is a problem of some moment in the country and needs that remedy, then I can not articulate a reason why we should bury the burden of proof.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: There's a point, a procedural point, that I'm curious about, this case was begun by the plaintiffs in the state court, and the police officer, police chief and the city removed it to the Federal court, is there a reason why they did that?</p>
<!-- roger_j_george_jr--><p><b>Mr. George</b>: I wasn't trial counsel at that time and I do not know the reason.</p>
<p>I agree with your earlier question about qualified immunity.</p>
<p>I don't believe... I think there is immunity both for the city and for the individuals here as a matter of law.</p>
<p>I grant you that the Fifth Circuit did not address that issue.</p>
<p>But I think this is a largely academic exercise in here and at this point, I'll reserve the balance of my time for Mr. Taylor, thank you.</p>
<p>Argument of Andy Taylor</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. George.</p>
<p>Mr. Taylor.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: Mr. Chief Justice, and may it please the Court--</p>
<p>This Court's teachings has been clear that warrantless arrests of traffic offenders based on probable cause is reasonable, and is a reasonable intrusion under the Fourth Amendment.</p>
<p>The court has taught us that in Robinson, in Gustafson, in Wren, and in Knowles, because the question from the constitutional perspective is whether or not probable cause to believe an arrest under that local law has occurred, and once that is met, then all the other questions become policy judgments that the 50 states should decide.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Let me suggest this, again, going back to, as you can guess, I'm rather intrigued with the descending standard.</p>
<p>Basically the descending standard is, if the decision to make a custodial arrest rather than citation is wholly arbitrary, if there's no plausible reason or articulable reason can be given for it, then it's arbitrary.</p>
<p>Now it seems to me that anything is arbitrary cannot be reasonable within the meaning of the Fourth Amendment.</p>
<p>Now why am I wrong about that?</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: The reason why that premise is incorrect Justice Stevens is this Court's teachings in Gerstein v. Pew and reaffirmed in County of Riverside v. MacLaughlin, once you have probable cause this Court's teachings have been not only can you engage in a full custodial arrest, but likewise you're entitled for a temporary detention for the purpose of administrating the paperwork so that this individual can be booked and then released once a probable cause determination has been made by a magistrate.</p>
<p>This Court has rejected the notion that there must be some second reason based on some mini trial based on the facts presented as to whether or not that decision of that tree to bring into custody is appropriate.</p>
<p>All three options to a police officer are reasonable under the Fourth Amendment.</p>
<p>The first is to issue a warning, whether it be in writing or oral.</p>
<p>Second, to actually arrest and bring into custody, or third to issue a citation instead of actually engaging in a full custodial arrest.</p>
<p>This Court has taught us that all three options are equally reasonable under the floor, the minimum guidelines and protections that the Fourth Amendment and the federal constitution give, and then it becomes a matter of policy.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But you're saying there is no standard that constrains the officer's decision on whether or not to give a citation as opposed to make a custodial arrest.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: There is no constitutional standard, it is a policy judgment Justice Stevens, and the different states have approached it in different ways.</p>
<p>As you will note some of the amici here have said that it's appropriate under state law to engage in a full custodial arrest.</p>
<p>Indeed, if arguing whether or not the state governmental interest is one that should be given credence by this Court, the state of Texas has spoken in the statute, even though the statute in question, the seat belt offense law does not provide for punishment in the form of jail time.</p>
<p>They have likewise determined that it is appropriate to have a full custodial arrest in order to enforce the government's interest in that particular law.</p>
<p>Therefore, that jurisdiction has made that policy choice.</p>
<p>Those policy choices are subject to political accountability.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's set forth specifically in the seat belt law?</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: The traffic rules of the road is a certain codification of state law that includes seat belt offenses and there is a statute in Texas on the books that says for any offense in this traffic code, full custodial arrest is appropriate, save two exceptions, one is for speeding, and two is for the open container law which were the results of political judgments made in the local jurisdiction.</p>
<p>Other states have decided that in certain circumstances they will allow the issuances of citation rather than a full custodial arrest based on the circumstances presented to that officer, and he has that discretion to make that judgment call.</p>
<p>But if he picks wrong in the view of the folks that have to review it later, in other words, we don't think he made the best decision among all of his options, so long as those options are equally reasonable under the Federal Constitution, then that mistake does not drive a constitutional decision of reasonableness because you can't put that in front of the decision.</p>
<p>And so, whereas here, the commission of an offense witnessed personally by the police officer gives rise to probable cause then the constitutional inquiry ends and the policy judgments and decisions will begin.</p>
<p>And that's why it would be unworkable as this Court in several questions has asked whether or not we can draw lines between fine only and jailable time.</p>
<p>In fact, in Welsh v. Wisconsin, one of those offenses in that case was for DWI, but under that jurisdiction's law it was only for jail... for a fine.</p>
<p>Similarly, in United States v. Watson, when dealing with the Prohibition cases, that particular, actually... Carroll v. United States, that particular case dealt with bootlegging, and that was a misdemeanor fine only offense.</p>
<p>You cannot determine the constitutional question based on the penalty that is associated with a crime, but rather based on whether or not there is an offense for the specific facts that have occurred.</p>
<p>If we let the penalty--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I suppose that misdemeanor violators, traffic violators, seat belt and all that stuff, french fries eaters, unlike felons, they're probably not a discreet and into a minority, are they?</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: --That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I mean they're a lot of them out there.</p>
<p>I myself have never been guilty of any misdemeanors.</p>
<p>But I am told that there are a lot of people out there.</p>
<p>And so you can probably expect the political system to be able to protect that category a lot better than you can expect them to protect felons.</p>
<p>Is this sheriff still in office, do you know?</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: To my knowledge--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: When you say he's been dismissed, I assume that means he's been dismissed from the case.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: --I meant the former and not the latter.</p>
<p>But the point is, Justice Scalia, your question demonstrates that these decisions well, under these circumstances what's the best policy choice is just that, a policy choice and not part of the constitutional rubric of the Fourth Amendment.</p>
<p>Those extra protections are for the state's to decide.</p>
<p>But the minimum guarantees of liberty in the Fourth Amendment are for this Court to decide, and I would submit that this Court has made it very clear that the decision must be pledged and looked to in terms of probable cause.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Taylor, do you know why local officials took this case out of the hands of Texas courts and put it in the hands of Federal court?</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: I do not, Your Honor, and the record does not indicate why.</p>
<p>One hypothetical suggestion could simply be that the Federal courts would be well equipped to know the differences between the Federal constitutional floor and the policy ceiling lights that the states may accord on situations such as this.</p>
<p>But clearly whereas here probable cause existed, then there was no constitutional infirmity, and this Court has rejected time and time again in Berkimer, and in United States v. Robinson and other cases, that we cannot allow the punishment rather than the conduct to give rise to the constitutional infirmity or lack thereof, because otherwise we're going to have conduct which in one state will result in an unconstitutional situation, and in other state a constitutional one.</p>
<p>And we cannot have a rule which differs all fifty jurisdictions.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well you have that now on the felony/misdemeanor distinction.</p>
<p>Felonies differ, some states classify them as misdemeanors, some classify certain offenses as felonies.</p>
<p>It depends... on your theory, that would make a difference in whether there could be an arrest without a warrant.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: Justice Souter, no, the fact that you do not draw a line is why it doesn't matter whether they're felonies or misdemeanors or--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You draw a line on the warrant requirement, I assume you accede to that.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: --Yes--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Sure.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: --you would have to have a warrant, absent probable cause.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So you've got... so you've got a variation from state to state, even under the scheme that you would advocate.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: Well, even where a warrant may be desired this Court has not stated as a matter of Fourth Amendment principles that a warrant is required in all circumstances, Gerstein says an on the scene assessment by a police officer of probable cause is enough under our constitutional interpretations of the Fourth Amendment.</p>
<p>And then it would be--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: If the officer is not... the point is that when an arrest is made for an offense that is not committed in the officer's presence, then a warrant is going to be required depending on the gravity of the offense, and I presume that is true under the system that you advocate.</p>
<!-- andy_taylor--><p><b>Mr. Taylor</b>: --Yes, in certain circumstances a warrantless arrest would not be appropriate because there's not probable cause.</p>
<p>But that's the touchstone.</p>
<p>If there's probable cause, then the arrest is appropriate in all circumstances.</p>
<p>In Wren v. United States, this unanimous Court held that the balancing test of the government and the individual is when a probable cause exists always tipped in the constitutional scale for the government.</p>
<p>And then only in extraordinary circumstances like warrantless intrusions into homes or serious bodily injure or deadly force do we then have any additional concerns.</p>
<p>In Knowles v. Iowa this Court made clear that what carried the day in that case was that they hadn't actually arrested the individual.</p>
<p>I understand Mr. Chief Justice my time is up.</p>
<p>Rebuttal of Robert C. De Carli</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Correct.</p>
<p>Thank you.</p>
<p>Mr. De Carli, you have three minutes remaining.</p>
<!-- robert_c_de_carli--><p><b>Mr. De Carli</b>: Mr. Chief Justice, may it please the Court--</p>
<p>What is interesting about this case as some members of this Court have pointed out, is respondents do not defend the reasonableness of the conduct of the officer in question here, instead they attack the workability of potential rules and raise... and allege that this is not a recurring problem.</p>
<p>Two points... well, a third point also they characterize decisions of this Court far beyond their holdings.</p>
<p>The first point, the reoccurrence problem, since certiorari has been taken by this case and I know this is anecdotal, we have received call after call of problems of this sort and to limit it to publically reported incidents, just within the past month, before this argument, a DPS officer arrested a passenger in a vehicle, the passenger was a 17-year-old boy with his mother, and that boy then... the officer asked the boy, do you have ID?</p>
<p>Well that boy lived in a small town that did not have driver's ed. He had no driver's license, so that was then used as a justification for arrest.</p>
<p>The arrest presumably would be one that would not be treated as a brief one.</p>
<p>He spent the night in jail in a holding cell with crack dealers and people accused of violent crimes.</p>
<p>I submit that it is a recurring problem and perhaps more on point, if the conduct in this case is condoned, it will be much more likely to be a recurring problem.</p>
<p>Secondly, boundaries, Judge Weiner's boundary as some members of the Court have suggested is just as workable as the Terry boundary.</p>
<p>It's not going to require a new volume of any treatise... for one thing it's already a couple pages in Blackstone, which has been around for some time.</p>
<p>It's just going to be a footnote.</p>
<p>But under either standard, no matter what the standard is, if it's reliance on the probable cause, or, excuse me, reliance on the common law rule or a balancing of the competing interests or any of the rules proposed by petitioners amici, petitioners win.</p>
<p>This was unreasonable.</p>
<p>And that leads to the fact that again they have offered no explanation for why this arrest furthered any legitimate law enforcement interest.</p>
<p>Finally, probable cause as the touchstone, I have not, I admit I have not read every Fourth Amendment decision that this Court has written.</p>
<p>However, I have never come across a decision saying that probable cause and not reasonableness is the touchstone of the Fourth Amendment.</p>
<p>And no decisions have held that anything other than a public felony arrest... thank you.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. De Carli, the case is submitted.</p>
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The OYEZ Project </div>
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Fri, 09 Jan 2009 14:50:28 +000058935 at http://www.oyez.orgCity of Indianapolis v. Edmond - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2000/2000_99_1030/argument
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<a href="/cases/2000-2009/2000/2000_99_1030">City of Indianapolis v. Edmond</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of A. Scott Chinn</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. Chinn.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Mr. Chief Justice, and may it please the Court: The City of Indianapolis operates roadway checkpoints comprised of conduct that in other relevant contexts this Court has approved.</p>
<p>The Court of Appeals declined to apply this Court's Brown versus Texas balancing test to evaluate that conduct because the checkpoints primarily investigate crimes, but the city's checkpoints are constitutional for two independent reasons.</p>
<p>First, this Court used the balancing test in upholding other roadway checkpoints where the government's interests was to investigate crimes.</p>
<p>Second, the city's checkpoints serve sobriety checking and driving regulation interests that this Court has approved and the city's drug checking conduct adds no additional intrusion to these procedures.</p>
<p>The roadway checkpoints this Court has previously upheld--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I have just one question about that.</p>
<p>I guess on the checkpoints to check for drunk drivers, that's at least related to the condition of the driver of the car, and the Court applied a balancing test and upheld it.</p>
<p>Now, is this search more to find drugs being transported in vehicles or is it looking for drivers who are impaired by drug use?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --It's to do both, Your Honor, but primarily to look for drug possession and trafficking in cars.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What do the statistics show or do they show about the percentage of people that were arrested that were using drugs and were therefore driving under the influence of drugs?</p>
<p>Do the statistics show us that?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Not in this case.</p>
<p>On this record there is no evidence that any driver was arrested because he or she was under the influence of drugs or alcohol.</p>
<p>Our statistics show that 4.7 percent of the drivers stopped possessed some sort of narcotics.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But does that make this akin to a checkpoint, for instance, to catch burglars in an area or a murderer or something of that kind?</p>
<p>Is this more for typical law enforcement purposes?</p>
<p>And does that affect the balance in some way?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: No, Your Honor, I think it's different than the hypotheticals that you described for this important reason.</p>
<p>The relationship between smuggling drugs in cars, of course, and the roadway itself is close.</p>
<p>We have found that, obviously, with our high hit rate in Indianapolis.</p>
<p>Carrying drugs in cars is important to foster the drug trade in our neighborhoods, both in terms of possession amounts and smuggling amounts, traffic amounts.</p>
<p>The ease with which the drugs can be concealed and moved about very easily and enter our neighborhoods is a problem.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, if there were a high crime area with lots of thefts and burglaries and it was believed that the burglars typically made their getaway in cars, is it appropriate to have roadblocks and check people for that purpose?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It might be, Your Honor, if that connection was shown.</p>
<p>If there was a significant connection shown by the government in that case between that rash of burglaries or whatever the crime may be and the use of the roadway, that would be perhaps available.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, there's always such a connection.</p>
<p>I know very few burglars that go on foot.</p>
<p>I mean, you're saying yes, then.</p>
<p>You're answering the question yes.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Well, certainly if you have a lot of crime in the neighborhood--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You can stop all cars to see if they have burglary tools?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --Probably not, Your Honor.</p>
<p>Certainly a substantial connection can be shown in this case and was shown in Martinez-Fuerte, for example.</p>
<p>The Court can easily set the bar at that substantial connection or significant connection that would differentiate between stopping cars for general criminal violations.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why is the connection between burglars, who usually get where they're going by car, not as close as the connection with drug traffickers, who usually engage in their business by car?</p>
<p>I mean, everybody almost usually does everything by car.</p>
<p>It seems to me I don't see anything special about this.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It's special, Your Honor, because here the car is used as an instrumentality to secret away the drugs that are then either... have been just purchased in a neighborhood or may be on their way to a neighborhood for sale.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Does the record... does the record tell us how many of these drug arrests involved persons who were selling drugs as opposed to those who might have just been using them themselves?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It doesn't tell us specifically, Your Honor.</p>
<p>What the record does tell us is that in the very first checkpoint that Indianapolis set up there was a sizable distribution amount that was seized in the checkpoint, but our checkpoints are designed to both attack the supply and demand.</p>
<p>We think it's important to attack possession amounts as well.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Would your case be as strong if the record showed that every one of the persons stopped just happened to be a casual user or something and then had some drugs left in the car?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Our case would be as strong for two reasons.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: You don't really... you don't really have to rely on the fact that some of them may be selling drugs?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: That's correct.</p>
<p>It tells you something about our program, but it... but it need... we need not have--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Chinn, I think you answered to an earlier question that the dominant reason for this program is to catch people who distribute, unlike the alcohol stops, the sobriety checks, that the dominant purpose is not to catch dangerous drivers, and you have no record of distinguishing between those two, so we have to assume... well, you have been candid about it.</p>
<p>Your purpose is to catch people who are distributing drugs.</p>
<p>Is that not so?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --Distributing... to smuggle drugs.</p>
<p>People who smuggle drugs, either for distribution or possession.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, I don't--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: --Is that the only purpose?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: For these checkpoints?</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Yeah.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Our... our... no.</p>
<p>We have three interests that are being served here.</p>
<p>The drug distribution interest is primary, and we conceded that, but we also, and the record shows this indisputably, check for signs of impairment.</p>
<p>So we are interested in catching drivers who are under the influence of drugs or alcohol.</p>
<p>And thirdly, we check drivers' license and registrations at each checkpoint.</p>
<p>In fact, that's the first thing that the officers do at the checkpoints, and we had a measurable, a sizable hit rate for driving violations as well.</p>
<p>It was essentially equal to our narcotics hit rate, and both were higher than this Court sustained in Sitz.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I suppose given the fact that you don't have a record with respect to finding actual impairment among the people that you stop, I suppose that if we sustain the search here, we would be required to do the same thing if you made a facial showing that in a given neighborhood drug distribution was done on foot.</p>
<p>I suppose you would be able to stop pedestrians again on a sort of a random basis according to some set of criteria like this and question every pedestrian.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Pedestrian stops present a different case, Your Honor, for several reasons.</p>
<p>One, this Court certainly hasn't applied, for example, the Brown balancing test to--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why not?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --Well, I believe because the degree of intrusion and one's expectation of privacy in the pedestrian context is simply higher or different than in the motorist context.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, the reason that it is is that... that we... we have, if not a history, at least some experience with... with motorist checkpoints, but there was a day when we didn't.</p>
<p>It had to start somewhere, and I don't know why the same reasoning couldn't be applied to pedestrians and start somewhere there, and after a while we'd have a tradition of stopping pedestrians on the street, too.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Well, the Court certainly has recognized for some time, for 75 years perhaps since Carroll, that motorists enjoy a diminished expectation of privacy.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yeah, but the original rationale for that was that because the person was in a car, the person could get away easily, and yet that rationale has nothing to do with the rationale that... that you're advancing here to justify this stop.</p>
<p>Your... your rationale for stopping cars is that people use cars to distribute drugs, and my suggestion is that in a given area if people distribute drugs on foot, the same rationale that would justify what you're doing here would justify pedestrian stops, and the original Carroll justification for an automobile exception so-called doesn't have anything to do with either case.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Again, I think there are some differences, Your Honor, between the pedestrian context and the motorist context.</p>
<p>Certainly there is that expectation of freedom of movement, of liberty interest that is different between cars and pedestrians.</p>
<p>Pedestrians are much less regulated certainly than cars, much less used to the government telling them that they have to stop.</p>
<p>Pedestrians can stop at their own will and proceed down the street and window shop in a way that cars cannot certainly.</p>
<p>Cars have to be traveling at speeds dictated by the government in a direction that's dictated by the government, cannot change lanes unless they do it in a way that the government has told them they can.</p>
<p>So--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I thought the rationale with the car was a lesser expectation of privacy in a car, say, as opposed to a home, but if you're going to do expectation of privacy, one can't be seen, I suppose the street would be lowest because the car, at least you are sheltered by the car itself.</p>
<p>On the street there you are.</p>
<p>Everybody can see you, so the rationale that you're offering, I think, would apply at least as much.</p>
<p>A high crime area, you have reason to suspect that people are going to get away so that the police are there to check them, and is there a distinction based on the expectation of privacy?</p>
<p>I don't see it, but perhaps you can explain it to me.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --I think in this case the expectation is a freedom of movement because here no searches are undertaken without probable cause, so really what we're talking about in this case and all respondents have ever challenged about this case is the initial stop of the car.</p>
<p>So the point is merely that because people in cars, motorists are used to being stopped, even at the behest of the government for any number of different reasons.</p>
<p>It's that expectation that makes these checkpoints in this case the same as the checkpoints that the Court has upheld in Martinez Fuerte and Sitz reasonable under the circumstances.</p>
<p>That's simply different than the pedestrian context.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I've never heard the concept of expectation of privacy which has been applied to... to searches applied to seizures, which is what you're now saying.</p>
<p>You're saying there's no reasonable expectation of not being seized, right?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: I think that's right, Your Honor.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do you know of any of our cases that ever applied that reasoning to seizures?</p>
<p>I mean, after all, you have to stop for a traffic light.</p>
<p>You have to stop for, you know, bridges that are up and all sorts of things, so you say, you expect to be stopped or seized by government order frequently while you're in a car, and therefore you have no right not to be.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: I think it's inherently part of the Brown balancing test, as this Court applied it in Sitz, for example, it measures in the third element of the Brown test the degree of intrusion on motorists.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yeah, but it doesn't say anything about expectation of being stopped.</p>
<p>I mean, this is just a novel, a novel approach to me, to use the expectation rationale with respect to seizures as opposed to searches.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: I think the point remains that cars are stopped in any number of different contexts, even at the government's direction, and so it's reasonable for the Court to conclude that that is a... presents a lesser degree of intrusion than the pedestrian context.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, even so, it's somewhat circular.</p>
<p>I mean, if we say there is no expectation, then there is going to be no expectation.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You're using the expectation.</p>
<p>You're using the expectation.</p>
<p>It's just... it's much more... it's reasonable to stop cars very often, very often for checks, you know, all the things that people have said in prior cases.</p>
<p>But the difficulty with your case is it doesn't seem any more reasonable to stop a car just to look for evidence of a crime in general than it does to stop a pedestrian to look for evidence of a crime in general.</p>
<p>And what you haven't done, at least I haven't heard you do, is to say why there's something special about this that would really justify stopping the car any more than it would justify stopping a pedestrian.</p>
<p>So what is it?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It is reasonable to stop a car because of, again, the connection between the activity that's sought to be regulated here and the roadway.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So that's when we go back to Justice Ginsburg who made the point very well, look, people sometimes rob banks on foot.</p>
<p>Bank robbers perhaps are poor, they can't afford cars.</p>
<p>They walk around.</p>
<p>And that happens a certain number of times.</p>
<p>So do we stop all the pedestrians?</p>
<p>I mean, you heard her question.</p>
<p>My problem is, I can't find anything special about being in a car in respect to a general search without suspicion that there's any special crime but just a general effort to stop crime, and I haven't heard you present one.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Again, we think that the Court could look to the substantial connection between drugs and their trafficking and possession on the roadways.</p>
<p>If the Court is not convinced that that presents a significantly different context than the pedestrian situation, then of course you could apply Brown in that context.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What was the reasoning of the Court in Martinez-Fuerte?</p>
<p>There you had a... a... a... a... a stop with... without a search, and unless there was probable cause.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Yes, the Court found on balance the degree of intrusion was not... did not outweigh the government's interests in that case, and that since Martinez Fuerte, like the case here, is a smuggling case.</p>
<p>There the fear was that persons or motorists were smuggling illegal aliens in their cars, and the Court thought it sufficient that a program of the neutral seizures at a checkpoint guarded against arbitrariness and did not outweigh the intrusion caused by--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Chinn, wasn't there the factor, the locational factor there that the stop, although distant from the border, was on the main... the road, the highway that you would take if you were going from the Mexican border into the interior because that's where all the traffic flowed.</p>
<p>But here you don't have that.</p>
<p>It could be any... anyplace.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --Let me say a few things about that if I can, Your Honor.</p>
<p>First, that was not part of the Court's decision in Martinez Fuerte.</p>
<p>These were stops of persons that there was no reasonable suspicion to believe had just crossed the border.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But it was a fact in the case.</p>
<p>There wasn't any question it was a main highway that people used, traveling from Mexico.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Yes, it was a factor in the case, Your Honor, but it didn't appear critical to the Court's holding, nor did the United States argue that that case is sufficiently different from our case.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So you think you could stop... police can stop cars anywhere in the United States just to look for smuggled immigrants?</p>
<p>Just stop the car and say, you know, can I see your papers, please?</p>
<p>That's sort of scary.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: If a particular government program was not successful, certainly, that is one check against that sort of checkpoint as well.</p>
<p>The second element of the Brown balancing test requires essentially that the programs serve the governmental interests at stake, and so a program that didn't do very well certainly wouldn't survive this Court's Fourth Amendment scrutiny.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What seems to be your argument, the strength of your case depends on the success, your success rate.</p>
<p>In other words, you prove it was reasonable by what you find rather than by what you knew before you started.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: I think it's... I think it's both, Your Honor.</p>
<p>We clearly have articulated in this case a substantial interest in interdicting drugs.</p>
<p>Respondents haven't really challenged that as an important interest, and it's an interest that this Court has upheld on many occasions.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: If I read your brief, it's important to your case that 5 percent of the people in Indianapolis apparently don't have their driver's license with them and another 5 percent have some marijuana in the car.</p>
<p>If there was only 1 percent, your case would be much weaker.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It would be weaker, Your Honor.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yeah.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Although probably--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But you didn't know that until you conducted the searches.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: --Well, we knew that we had a problem.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Sort of like... sort of like you found something there, ergo, it was reasonable to look for it.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Well, we certainly knew we had a problem, and our program actually proved that we were correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: The case that everybody begins with in automobile searches is Carroll, the prohibition case, and the Chief Justice in that case writing it said it would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highway to the inconvenience and indignity of such a search.</p>
<p>That's this case, isn't it?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It's not for a couple reasons.</p>
<p>First, that case was for that quote, and that case was talking about searches, and of course we don't search anyone here.</p>
<p>We engage in a pattern of brief roadway seizures.</p>
<p>And secondly, this Court's decisions in Martinez Fuerte and Sitz and its suggestion in Delaware versus Prouse shows there are any number of things that a court... that a government can... interests that can be served by a checkpoint program.</p>
<p>Mr. Chief Justice, I'll reserve my remaining time.</p>
<p>Thank you.</p>
<p>Argument of Patricia A. Millett</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. Chinn.</p>
<p>Ms. Millett, we'll hear from you.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Mr. Chief Justice, and may it please the Court: Our position is first the petitioner's checkpoints, including their drug detection component, are constitutional under this Court's decisions in Martinez-Fuerte, which upheld a checkpoint designed to intercept alien smuggling, and Sitz, which upheld a sobriety check-in... checkpoint.</p>
<p>Second, petitioner's checkpoints are also constitutional because they advance the government's legitimate interests in assuring that only properly licensed and sober drivers--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: On your first point about Martinez, how would you respond to Justice Scalia's question?</p>
<p>Would that checkpoint have been legal in Indianapolis?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --As a constitutional matter, yes.</p>
<p>As a statutory matter, no.</p>
<p>The Border Patrol--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: As a constitutional matter.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --does not have authority to go beyond a hundred miles.</p>
<p>As a constitutional matter, if the government, Border Patrol was able to show that, for example, in Indianapolis or Kansas or between... somewhere in Colorado there was a thoroughfare that had a strong nexus to alien smuggling, for example, seasonal workers moving back and forth, then it would be.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: With what we now know about Indianapolis, just right as of today, do you think it would be legal to have the Martinez-Fuerte's checkpoint in Indianapolis today?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I think we would have to show an alien smuggling nexus to the roadways on which we established our checkpoints.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, then did they have to show them before they conducted these checkpoints here, did the city have to show that 5 percent of the people were driving without licenses or did they find that out after they did it?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I think they have to establish... they have to have a reasonable basis for believing that there will be a problem.</p>
<p>Obviously, we have that with the alien checkpoints that the Border Patrol operates, and here the City of Indianapolis focused on crime statistics and was able to determine that particular areas--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: The high crime statistics they got as a result of the program they instituted.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --No, no, no, general crime, drug crime statistics, which you obviously will know in advance as a law enforcement agency, just as we know where the primary problems of alien transportation are in the country.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Let me follow up on the Indianapolis hypothetical.</p>
<p>Why would it have to be alien smuggling?</p>
<p>I mean, why couldn't you simply identify an area that has a large... you know that there are a large number of illegal aliens in this section of Indianapolis that is largely Hispanic, so you simply set up roadblocks, and I'll bet you you'll get a pretty good catch if you stop every car that drives down the street in that section to see if there are illegal aliens in the car.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: I think as a constitutional matter, if the government were able to show the appropriate nexus and the effect that its checkpoints again were actually effective that it would... and the intrusion was no more than it was in Martinez-Fuerte, but, yes, the Fourth Amendment applies the same in Indianapolis as it does in Arizona.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Then the same result then would be for pedestrian checkpoints?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: No, not at all.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why not?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: There's a bright line in this Court's decisions between cars and pedestrians.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why should there be?</p>
<p>In other words, the rationale that you're advancing and that your brother has been advancing doesn't seem to me to make any particular sense of that distinction.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: First, it's beneficial.</p>
<p>I don't think there's anything about this case that puts us closer to pedestrian checkpoints than Martinez-Fuerte and Sitz, but the rationale has been--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, if... if Martinez-Fuerte can be applied as you have said to Justice Scalia that it may be applied in Indianapolis or the middle of Nebraska somewhere because there is... there is a... a... a general basis in the evidence prior to the search operation, that there is a high incidence of illegal aliens, then to begin with Judge Posner's rationale has nothing, I guess, to do... much to do with the case, and it doesn't seem to have anything... it doesn't seem to be key to the use of automobiles, and therefore I don't see why, if we accept your answer to Justice Scalia, we are not well down the road toward pedestrian checkpoints.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --Because cars are different than pedestrians.</p>
<p>Cars are highly regulated.</p>
<p>This Court has recognized this they are subject to a web of regulation by government, and I think it was Justice Breyer earlier said one has no reasonable expectation within the meaning of the Fourth Amendment that you will not be briefly stopped and asked to show a driver's license, your authority to operate the car, and under Martinez-Fuerte that you are not using the car to smuggle illegal aliens, we see no difference between that and smuggling drugs.</p>
<p>And in this case the drug component isn't necessary to explain the seizure.</p>
<p>The entire scope of the seizure is independently justifiable.</p>
<p>In fact, most of the time is expended on the driver's license checkpoints.</p>
<p>The only role of the drug detection component is that they're in a justifiable stop under this Court's precedence for driver's license checkpoint and sobriety checkpoint.</p>
<p>They add a canine sniff for dogs.</p>
<p>That does not independently cause the seizure, although we do think a drug checkpoint in its own right is constitutional, but it does--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, then, on... excuse me... on that theory could the police station drug detection dogs at every street crossing where the traffic lights require pedestrians to wait until the yellow light comes along?</p>
<p>The pedestrians are being stopped in the normal manner in which pedestrian traffic is regulated.</p>
<p>The dog is no more intrusive than the dog is when it goes around the car.</p>
<p>Could the police do that and have a good search?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --Yes.</p>
<p>I think the police have a right to be on street corners with their dogs or without their dogs, and smell... the sniff the dog alerts to is odors emanating from--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So if somebody says to the dog, you know, get away from me, the police can say, no, you've got to let the dog search you?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --No, that then I think would be a seizure of a pedestrian if they won't... can't get away, but the pedestrian can walk away.</p>
<p>It's a big difference.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Then why isn't it a seizure of the car for something other than the purposes of checking license plates when the dog goes around the car?</p>
<p>Are you telling... or maybe your answer would be that the driver of the car can say to the police, get the dog away from the car.</p>
<p>And the police would have to do it.</p>
<p>Would they?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: No, I don't think so.</p>
<p>Because the difference between the pedestrian example and this one is that you have a legitimate basis for the seizure independent of the dog.</p>
<p>That's the driver's license checkpoint.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You have a legitimate basis for stopping the pedestrian until the light turns yellow.</p>
<p>The pedestrian is just as validly stopped as the car is for the driver's license check.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: That... that... well, I think it's a separate question whether--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: If the pedestrian can tell the police to get the dog away, why can't the car owner?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --I'm not sure that a traffic light, in fact, effectuates a seizure within the meaning of the Fourth Amendment.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well--</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: Because pedestrians can turn around and walk away, they can do a U-turn.</p>
<p>I'm sorry.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --Do we know in the facts of this case whether the dog sniffing occurs while the license check is going on or whether the policeman first checks the license and then says, okay, now stay here, I'm done checking your license, but I want to walk around the car with a police dog?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: My understanding is that it's done while the driver's license check is going on.</p>
<p>And that's what takes the two to three to five minutes.</p>
<p>Dog sniffs take a minute, 90 seconds at the most for a very large vehicle.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Suppose the city council authorized this search and had a preamble and said, in order to interdict drug distributors, we are setting up the following checkpoint, and then the case is just like it is, and you have a license, they say that the sole... the purpose is to interdict drug smuggling.</p>
<p>Does that change the case at all?</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: It doesn't... we have two rationales.</p>
<p>Our position is that drug interdiction, drug smuggling checkpoints in their own right are constitutional, so obviously under that theory it would not.</p>
<p>But if the Court disagrees with that and says that that is not a legitimate basis for having a checkpoint, then the case would be different if they did the stop and they did not actually effectuate the interests that are served by a driver's license checkpoint, they didn't ask for the licenses, and they didn't act upon license violations.</p>
<p>If they, in fact, act upon license violations and serve that interest within the meaning of this Court's prior recognition of that as a legitimate interest, then the fact that they also serve another legitimate interest that does not in any way change the nature of the intrusion on the individual, does not enhance the length or duration or intensity of the seizure, then it would not make a difference, and then what the government says or doesn't say in the preamble I don't think would change the Fourth Amendment analysis.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: In other words, in order to do it, the city has candidly told us it wants it to apprehend drug distributors, it has this pretense of stopping people to check their licenses an also purpose, but it's using that as a gateway to get to what it's really interested in, which is the drug distribution.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: You mean pretense by the fact that they ask for licenses but don't do anything about it?</p>
<p>And I profess to do something--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: No, you said that they would have to do that.</p>
<p>Mr. Chinn told us... candidly, I thought, to his credit... that the primary purpose of doing this is to apprehend drug distributors.</p>
<p>So you're saying, yeah, but they couldn't just do that openly or overtly, they need some kind of cover for it.</p>
<p>So we do the license check.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --That's not what I mean to say.</p>
<p>Our position is that a drug checkpoint in its own right would be constitutional.</p>
<p>Border patrols, the drug smuggling, aliens--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So let's take... then let's take away that.</p>
<p>You are saying without the license and registration check this would still be okay, we just stop people because we want to have the dog go around the car.</p>
<!-- patricia_a_millett--><p><b>Ms Millett</b>: --I'm saying two things.</p>
<p>We're saying that's our first... that's our first argument.</p>
<p>Our second argument is if the drug interdiction purpose is not in itself a basis for the stop, then as long as the driver's license stop or the sobriety stop is actually being accomplished by the government, those interests are being served, and the drug detection component does not add anything to the length or duration of the seizure, then it would still be constitutional under both of them.</p>
<p>And that if both of them are legitimate interests, if the Court doesn't... as long as... as long as one legitimate interest is served by the checkpoints and explains the entire... and justifies the entire scope and duration and intensity of the seizure, the fact that the government has other interests, primary or secondary, doesn't matter.</p>
<p>Argument of Kenneth Falk</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Millett.</p>
<p>Mr. Falk, we'll hear from you.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Mr. Chief Justice, and may it please the Court: This case is not Martinez-Fuerte.</p>
<p>This case is not Sitz.</p>
<p>The Indianapolis roadblocks are criminal investigatory seizures of primarily innocent persons without cause.</p>
<p>In Martinez-Fuerte--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Certainly the seizures in Martinez-Fuerte and Sitz were also seizures of primarily entered in.</p>
<p>No one claims they had a 51 percent harvest there.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --That's correct, but this Court recognized, Your Honor, for instance, in Montoya de Hernandez that Martinez-Fuerte was one of a number of cases reflecting the long-standing concern for the protection of the integrity of the border, which has been characterized as a noncriminal investigatory concern.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But in Martinez-Fuerte they arrested these people.</p>
<p>That's how the case came to this Court.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, of course, Your Honor, but in Camara back in 1967, violation of the housing codes in issue there were criminal.</p>
<p>In New York v. Burger, violation of the regulatory statute turned out to be criminal.</p>
<p>This Court in all those cases looked back to see what the programmatic purpose was, and recognized that the programmatic purpose was not for criminal investigation.</p>
<p>If, in fact a--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What did the Court say, then in Martinez-Fuerte?</p>
<p>What did it say the main purpose, the programmatic purpose, as you call it, was?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Protection, integrity of the borders, Your Honor, have been recognized by this Court since I believe the 1880s in the United States v. Boyd, that the United States has an inherent regulatory right to ensure that people and things that enter this country do so lawfully.</p>
<p>That is a regulatory purpose.</p>
<p>Similarly, lower courts have recognized through inspection and checking licenses, registrations, and inspection status has recognized a safety-related purpose for traffic stops.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And drunk driving.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: And drunk driving, Your Honor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How about driving while impaired by drug use?</p>
<p>If that were the purpose, okay?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: If the... if the City of Indianapolis could show here that there was, indeed, a problem of drugged driving, like there was in Sitz of drunk driving, then of course there could be a regulatory purpose.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: How could the city show that without having done some investigation?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, I think if you looked at Sitz there were reams of statistics introduced there to show what the national and local problem of drunk driving was.</p>
<p>Sitz recognized... I'm sorry?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Please, finish your answer.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Sitz recognizes that there is a regulatory right of a state to get an immediately unsafe vehicle off the road.</p>
<p>In the same way that a car without brakes is imminently unsafe to innocent persons, so is a car driven by a drunk driver.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What about a driver without a driver's license, is that a safety concern?</p>
<p>Do you acknowledge that it's okay to make the stops to see that the person behind the wheel has a driver's license?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Arguably, Your Honor, but even those stops, even those noncriminal investigatory seizures have to be justified under Brown, there has to be a showing there actually is--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's fine.</p>
<p>Let's assume that that is so justified here.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What difference does it make that in the course of that search, in the course of that stop the police also send a dog around the car?</p>
<p>I mean, in the case of individualized traffic stops, we have innumerable cases where the person who was caught with drugs in his car after a stop for a broken taillight and in the course of interrogating the driver about the broken taillight, the policeman sees something suspicious, and then conducts a full search.</p>
<p>And it is often alleged and may well be true that the reason the policeman stopped the car with the broken taillight was that this car looked suspicious and he thought it might have drugs in it, and we have simply rejected that argument.</p>
<p>We've said we're not going to go into the subjective motivation of the individual policeman.</p>
<p>So long as he had a valid basis for stopping the car, that's enough.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Now, why shouldn't that apply in gross, just as it applies with respect to individual traffic stops?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Subjective intent is irrelevant provided there is otherwise probable cause.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right, so--</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: But there is no cause here, Your Honor, and this Court has insisted--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --But there is cause.</p>
<p>You've acknowledged that it is okay to stop to check for driver's licenses.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Well, there's not a criminal investigatory cause.</p>
<p>And I would add, Your Honor, that this Court has made it clear in, for instance, in Terry, you cannot go beyond the scope of what is allowed by the narrow exception to the cause requirement of the Fourth Amendment.</p>
<p>Michigan v. Clifford, same example.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I'm assuming they're not going beyond what's allowed.</p>
<p>They're only stopping to check... now their real purpose is to find drugs, but they're only stopping the cars as long as it takes to check for driver's licenses.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, Your Honor--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: While they do that the dog sniffs around the car.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Obviously adding the dog goes beyond the scope of a license checkpoint.</p>
<p>A dog is not necessary to check licenses.</p>
<p>Under the roadblocks--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The dog... the dog is not a search under our place.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Well, arguably that's correct, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Or it's a stop.</p>
<p>Not just arguably.</p>
<p>The Court has said it's correct.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: The Court has said that a search of unattended luggage is not... by a dog, a sniff, excuse me, is not a search, but I'm assuming it's not a search for this purpose, Your Honor, but still it is clearly beyond the scope.</p>
<p>It is something unnecessary--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Beyond the scope of what?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Beyond the scope of what is allowed for the regulatory intrusion to check someone's license, Your Honor.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I guess a policeman could walk a dog, a sniffing dog down the street, couldn't he?</p>
<p>I mean, suppose he did that.</p>
<p>There are people stopped, I mean, so it doesn't bother anybody, but he sniffs the dog.</p>
<p>I thought probably that was lawful.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, but Your Honor, this is a seizure.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But I would like you to address that particular point.</p>
<p>I'm confused.</p>
<p>My characterization, not theirs.</p>
<p>But from what Mr. Chinn said, I thought that this was a stop the basic purpose of which was to look for drugs; i.e., if the police had known they weren't going to get... be able to look for drugs, there would have been no stop.</p>
<p>From what the Solicitor General said, I thought that my characterization, not hers, that this was a different kind of stop.</p>
<p>This was a stop to search for drunk drivers or a stop to search for licenses... unlicensed drivers, and the police would have done it if drugs had had nothing to do with it, and their having done this is like somebody stopping at a red light, and people walk a dog around.</p>
<p>Well, there seems to be quite different considerations.</p>
<p>So what is this case?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: This is not like stopping at a red light.</p>
<p>This is being pulled over by a sign saying, warning, drug interdiction checkpoint ahead.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But that isn't my point.</p>
<p>My point is, have the police set this up to look for drugs and in the absence of their ability to do that, they wouldn't have set it up, wouldn't have stopped people?</p>
<p>Or is it a search that the police set up to look for no licenses and alcohol?</p>
<p>And if you had told them you can't look for drugs, they would have done it anyway?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: This is a search to look for drugs, Your Honor.</p>
<p>No matter how quickly one shows a valid license or registration, one cannot leave the checkpoint until the dog sniffs the car.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Now, when you say it's a search to look for drugs, and the Solicitor General says it isn't, it's a search for... how am I going to find out who is right?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: The City of Indianapolis concedes that the primary purpose of this search, excuse me, of this seizure is to look for drugs.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Where did they concede that?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: They have conceded that, I believe, in their briefs.</p>
<p>They conceded that today before this Court.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And does primary purpose mean in the absence of their ability to do that, they wouldn't have done it; i.e., it was a necessary condition for the stop?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: I'm sorry, Your Honor, I cannot answer that.</p>
<p>All I can answer is that everything that an individual is told when they are stopped, they are told, you are now at a drug roadblock.</p>
<p>They are told, this is a drug interdiction checkpoint coming ahead with canines to check for drugs.</p>
<p>You cannot--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Did the courts below find there were these other purposes in addition?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --The trial court found that from the fact that the licenses were checked, that there's a secondary purpose to look for licenses.</p>
<p>The Seventh Circuit, Judge Posner found that the primary, not sole purpose was to look for evidence of drugs, and in fact as I've indicated, everyone is told when they're pulling up there is no pretense, there is no one saying this is a license roadblock, you are at a drug checkpoint.</p>
<p>And even if as I indicated this was a checking of licenses, there is no valid reason to go beyond that and introduce the drug-detecting dog unless you are now converting this seizure which arguably might be a regulatory seizure into one for purposes of criminal investigation.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Why can't the city or the state have a multipurpose stop?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Arguably they could.</p>
<p>They don't in this case, but arguably they could.</p>
<p>But you still have to look--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I thought counsel here said that there were three purposes for the thing.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --The city has never attempted, never attempted below to justify even under Brown having a license checkpoint.</p>
<p>There never was a showing that there was a public need for this.</p>
<p>There was never a showing that the means used were not overly intrusive, and in fact advanced that effort.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What service... at what point do you think the city would have to make that showing?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: I think at some level they would have to show that they believe this is a problem in Indianapolis and this is--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: You mean the city council would have to pass a resolution?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --No, I mean in the course of justifying their search to the Court.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Justifying it at what point?</p>
<p>I mean, when it's brought to court, as it was here?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But you're not saying they would have to justify it beforehand?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: No.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: It seems to me in court, the lower court, the District Court they found that there were additional purposes.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: The lower court found only that licenses and registrations were taken, and from that she surmised this secondary purpose.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Surmised?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, there is no other evidence, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But if that was satisfactory for the District Court, are you saying it's clearly erroneous to have found that?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: No, Your Honor.</p>
<p>I think it's clear from the way the roadblock is set up that licenses and registration are taken to hold the people there so that the dog can sniff the car.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Take an easy case in which there is simply a history in Indianapolis or any other jurisdiction of license roadblock checks, and after 25 years of doing this, suddenly one day a drug sniffing dog appears at the license check.</p>
<p>Would you find anything constitutionally suspect in the use of the dog there?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes, Your Honor, that would be unconstitutional because you have now gone beyond the scope of what is arguably a valid, noncriminal investigatory seizure under Brown.</p>
<p>Arguably--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, but let's... you're talking about seizure.</p>
<p>Let's assume that the dog simply sniffs, if it sniffs at all, during the time in which it takes to look at the license so that there is no... there is no greater imposition upon the driver by the use of the dog.</p>
<p>Would that raise a constitutional suspicion?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Yes, Your Honor.</p>
<p>This Court has never said you can take a noncriminal investigatory seizure and incrementally add things to it and still be constitutional.</p>
<p>The opposite is true.</p>
<p>Let's go back to Opperman, inventory case.</p>
<p>You can have one officer searching a car and another officer searching the exact same car, I mean another car in the exact same way, two different searches exactly the same.</p>
<p>One can be constitutional because the programmatic purpose is not criminal investigation, an inventory search.</p>
<p>The other could be unconstitutional if the officer is looking for evidence of a crime.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But in the example that I gave you, the assumption that I was making or implying by the hypo was that the license check remained, in fact, a bona fide license check.</p>
<p>It had been so before dogs arrived, it continued to be so after the dog arrived.</p>
<p>If you make that assumption, that in fact there is a bona fide license check being made for the ostensible purpose, that of checking licenses, does the addition of the dog raise a constitutional suspicion?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes, it does, and for the reason I indicated.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Does it raise it for any other reason than it raises a question as to whether they are still really looking for licenses?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Your Honor--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I can understand... I guess I can understand your argument.</p>
<p>You say, hey, look, when the dog appears, we all know that they are no longer interested in licenses, they are interested in something else.</p>
<p>They are doing just what they are doing here.</p>
<p>That argument I can understand.</p>
<p>But if you assume, if it were proved, if it were found as a fact by a reviewing court that the license check was still a bona fide purpose, that's where I have trouble with your position.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Your Honor, we're not asking this Court or any court to go inside the head of people to see what their real purpose is.</p>
<p>When you add the dog, there is only one purpose.</p>
<p>A dog cannot check licenses or registrations.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But the reality of police work is that the police enforce all of the laws.</p>
<p>Suppose there were a driver's license checkpoint as stipulated by Justice... hypothesized by Justice Souter, and the police said now we want to add the people, the officers manning this license checkpoint who are experts in drug detection.</p>
<p>Would there be something constitutionally suspicious about that?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: No, provided they use that expertise in a way that does not require dogs or equipment or anything that is beyond the scope--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: No, but they're trained especially to look at people's eyes and to smell and to look at the kinds of containers they can see in plain view, this is to normal police work.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Sure.</p>
<p>Of course.</p>
<p>And that's analogous to doing an inventory inspection of a car and seeing evidence of a crime in plain view.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So then if that's permissible, what's not permissible about adding the dog?</p>
<p>Because the dog's more efficient?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Because... but you've added the dog.</p>
<p>You've added something which is beyond the scope.</p>
<p>It's not in plain view.</p>
<p>You've added something completely different and--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Officers with really sharp noses would be okay?</p>
<p>[Laughter]</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: How about bringing a witness, just bringing a witness to look at somebody stopped at a stoplight?</p>
<p>I mean, people do things like this all the time.</p>
<p>You stop them for one purpose, but what the policeman does doesn't hurt them in any way whatsoever.</p>
<p>It's just a way of getting a witness or somebody to... you're pursuing this line of I guess assuming that this was a stop that was done for a legitimate other purpose, and I'm having trouble following that assumption.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Your Honor, we are arguing this because we... the question has been asked, what if there was a legitimate secondary purpose.</p>
<p>We have contended all along in both the lower courts and our briefs that--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What does secondary mean?</p>
<p>To me secondary meant that they never would have done this thing if it weren't for the primary purpose.</p>
<p>That's what I thought it was and now I'm a little mixed up about it.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Your Honor, I cannot tell you what the city would and would not have done but for the drug search seizing.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Do they have any other places in the city where they stop people for checking for licenses?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Not that I'm aware of, Your Honor.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Do they have any other places in the city in the same way where they stop people for drunk driving with these same kinds of checks?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Not that I'm aware of, Your Honor.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Mr. Falk, I don't understand why it makes any difference whether the city would have done this otherwise.</p>
<p>Why does it make any difference in this case?</p>
<p>It surely makes no difference when a defendant who has been convicted of a drug offense comes in and says, the policeman who stopped my car, oh, yes, he stopped it because of a defective brake light, but that's not really what he was after.</p>
<p>And we don't inquire as to whether that's really what he was after, and I frankly personally believe that very often that isn't what he was really after, that he stopped this suspicious looking car which happened to have a defective brake light.</p>
<p>Now, we just don't listen to that argument.</p>
<p>We don't care what the primary subjective purpose was.</p>
<p>Why should we care here so long as they have authority to stop for the driver's licenses and one of the purposes of the stop is driver's licenses, what difference does it make that they have another motive?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Programmatic purpose has always been extremely important in searches or seizures which are designed for things other than criminal investigation.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Mr. Falk, I want to get into this same area with you because as I read Sitz and Martinez-Fuerte, this Court didn't look at purpose at all.</p>
<p>We have spent most of the morning here talking about purpose, what was the purpose.</p>
<p>That wasn't the analysis.</p>
<p>The Court just went to balancing.</p>
<p>What does the government need and how closely does the checkpoint serve that need?</p>
<p>And we totally obviated the need to look for purpose, so I'm not sure that these discussions have helped the analysis that much.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: The problem, Your Honor, is if we lose the purpose inquiry procedures which are not inherently regulatory like Martinez-Fuerte, which are not immediately concerning safety, like Sitz, then we are going to end up with pedestrian roadblocks because--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: You have no bright line.</p>
<p>I read over Martinez-Fuerte twice in the last, and I simply don't find any statement in there that the seizure was primarily regulatory.</p>
<p>Can you refer me to language in the case that says that?</p>
<p>They ended up arresting the people.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --That's correct, Your Honor.</p>
<p>And as I said, they arrested people in Burger and arguably could have arrested in Camara.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But where does it say in Martinez-Fuerte that the seizure is primarily regulatory?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Martinez-Fuerte does talk about the immigration problems, and other cases I cited this Court back--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I asked you about Martinez-Fuerte.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --No, there is nothing in Martinez-Fuerte, Your Honor, that specifically says it's regulatory.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: That says it's regulatory?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: That's correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you're trying to reconcile that decision as a piece of a tapestry with the ones that had to do, for example, with the fire investigation when this Court did make something of a purpose line.</p>
<p>They said if you want to find out how this fire got started, that's regulatory and it's okay.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: That's correct.</p>
<p>That's correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But if you're trying to find the arsonist, it's not okay.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Of course.</p>
<p>And in Opperman this Court found it extremely important that the seizures there and the searches were pursuant to a noncriminal inventory purpose.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But I want to go back to the rationale that I think you started to add up right there for the reason for the purpose inquiry.</p>
<p>If I understood what you were saying is, I think you were implying that in cases like Martinez-Fuerte and the regular driver's checks, the question of purpose was not in the case; that where purpose has come into the case, as Justice Ginsburg suggested, we have... we have said that in fact purpose is a crucial inquiry.</p>
<p>And I understood you to be starting to say that if you don't make it a crucial inquiry, your categories simply collapse and there is no way, in effect, to stop, as you said in your... there is no way to stop short of pedestrian search.</p>
<p>Can you elaborate on that?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, if the category collapses in multiple dimensions, the first collapse, as this Court noted in questionings of Mr. Chinn is what about things that are serious concerns to the city other than drugs?</p>
<p>So we will have an expansion to what other problems, people not paying parking tickets, people not paying child support, other things of stopping motorists.</p>
<p>It also collapses, however, as far as who can be seized.</p>
<p>If the argument is that somehow getting into your car is a surrender of your privacy interests, that same argument, as you noted, applies to a pedestrian in a high crime neighborhood.</p>
<p>Why not stop that person?</p>
<p>That person has by going out in public surrendered a significant amount of privacy, arguably more than I surrender when I drive down the street in my car.</p>
<p>Ultimately what the city is arguing, I believe, is that if we subject everyone to the same degree of intrusion pursuant to this plan, that that somehow makes everything constitutional, but this Court has never viewed the Fourth Amendment as somehow being something that allows everyone to be treated in an even-handed manner.</p>
<p>As long as everyone's constitutional rights are violated in the same way, that's appropriate.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But we have recognized special needs as an exception to the individualized suspicion, and we've recognized those special needs in the automobile context.</p>
<p>And it is certainly arguable, I guess, that because the state licen... or the... because the state licenses the driver and because motor vehicles are deadly weapons potentially that the state has a special need of assuring that the people who are driving are licensed and are not impaired by drugs or alcohol.</p>
<p>And maybe there's a special need there that can be met by occasional checkpoints.</p>
<p>Is that unreasonable?</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And if I may add, this is exactly what the Court said, this is what Justice O'Connor's point is.</p>
<p>This is exactly what the Court said in Sitz.</p>
<p>We don't need Martinez-Fuerte, not because there is a difference between a regulatory stop and a stop for probable cause, but because it's a car involved.</p>
<p>That's the way I read Sitz.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: It's an unsafe car involved, as Justice O'Connor noted.</p>
<p>It's an immediately unsafe car that is going to cause imminent harm to innocent persons because it is a deadly weapon when driven by someone who is drunk or drugged.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: That doesn't translate to pedestrians at all.</p>
<p>We are dealing with licensing somebody to use this potentially lethal vehicle.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: But it doesn't... that's correct, but it doesn't translate to searching the trunks of cars to search for drug smugglers, it doesn't translate to that at all.</p>
<p>It translates to checking to see if someone is drunk or someone is impaired.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Right.</p>
<p>Then it boils down to whether there is any increase in intrusion by having the dog sniff.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: There is an increase in intrusion when the state turns a criminal investigatory eye on presumably innocent persons, yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I know you say yes, but until I heard the Solicitor General, frankly, I thought that just like the first of the cases you're talking about was an immigration case and the second case was a drunk search.</p>
<p>This was a drug search.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: The lower courts have treated it this way.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Indianapolis had said any other purpose was secondary.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Now suddenly since the Solicitor General argued, I think there is a new premise reaching in... reaching in.</p>
<p>This is not a drug search case.</p>
<p>This is a drunk search plus a dog.</p>
<p>Now, that's quite a different thing.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: That's correct.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And because of that issue, I think it's important to get clear on what it is, and if we're treating it as a drug case, it's one thing.</p>
<p>Drunk case plus a dog, it's another.</p>
<p>So in your last answer, you accepted the characterization.</p>
<p>The second characterization.</p>
<p>And I want to be sure what you think about that and why I take it you think it should be the first characterization, not the second.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: This is most definitely a drug case.</p>
<p>The city has always indicated its primary purpose is to interdict drugs, not to find drugged drivers.</p>
<p>The city has always said that's not the purpose.</p>
<p>The purpose is, as the city conceded this morning, to stop bad guys carrying drugs, from carrying them through the streets of Indianapolis, and that is why it's no different than a pedestrian search, because there are bad guys carrying drugs who are walking through the streets of Indianapolis.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So what is wrong about the city saying, look, we have a right to stop people, to look at their licenses?</p>
<p>Police forces do this all the time in Fairfax County.</p>
<p>They stop to make sure you paid your vehicle tax.</p>
<p>Why don't we do that, and in the course of doing it have a dog sniff around the car?</p>
<p>In fact, their primary purpose may be to have the dog sniff around the car, but they are conducting a stop that is a perfectly legitimate stop, and we don't look into purpose.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: And, again, assuming that was the case here, which I do not believe it is, because I think we are dealing with a primarily if not sole drug issue, but even assuming that sort of mixed motive which you're hypothesizing--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, I'm not... I'm not assuming a mixed motive.</p>
<p>I'm hypothesizing that they wanted to get people carrying drugs, and the means of doing it, they said we have a perfect right to stop cars in order to look at licenses, and why don't we do that, and while the cars are stopped, send a dog around the car.</p>
<p>What's wrong with that?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Then what we have is a criminal investigatory seizure done without any individual--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, it isn't a criminal investigatory seizure.</p>
<p>It's a seizure to look at their licenses.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --No, it's not.</p>
<p>It's a seizure.</p>
<p>When you have a dog there, it's a seizure to look for drug activity.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but this comes back to your purpose argument.</p>
<p>You're basically saying that Justice Scalia's premise cannot be accepted in those circumstances.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: That's correct.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And you're saying that because purpose is crucial, we characterize it this way as the drug search.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: There has been--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But the tough question, and I think this is consistent with his question, what if we assume, it is found as a fact by the reviewing court that the license check or the registration check is, in fact, a genuine, bona fide purchase... purpose, and they simply add the dog?</p>
<p>They're saying, look, if we're stopping them for this legitimate purpose anyway, why not check for this, too?</p>
<p>Why not let the dog go around?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Because--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why does the dog taint the search in that case?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Because then you're going back to having a seizure which is for criminal purposes which is beyond the scope of what might otherwise be allowed in a noncriminal investigation.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And is the reason of the beyond the scope criterion essentially a slippery slope reason?</p>
<p>Are you, in effect, saying that my premise is really an unsupportable premise?</p>
<p>Because if you accept that premise, everybody's going to wink and say, we're just checking for licenses, and we happen to have this dog here, and... and that the... that the premise, in fact, will never... or will... the threat that the premise will not be true, that it will not be a bona fide purpose is just too great, and that's why you don't let the dog--</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Yes, although I think in defense of Indianapolis, they're not winking.</p>
<p>They're coming out--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: --Oh, I realize that.</p>
<p>I'm pursuing... I'm just pursuing the limits of your argument as Justice Scalia--</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --If you break the distinction down between criminal investigatory purpose and a noncriminal investigatory purpose--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: --Would you say stopping for driver's license, a man who doesn't have a driver's license is not a criminal investigatory purpose?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --I believe, Your Honor, that that's been deemed to be regulatory because--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Deemed by whom?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --Well, I think in lower courts, in approaching the problem, have deemed that to be... the desire is to remove immediately unsafe people off the roads.</p>
<p>There's a presumption if you have no license you're unsafe.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, there's also a presumption you've committed a crime.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Well, yes, Your Honor, but again this Court has recognized, as I said, in Camara and Burger and other cases that you can have a regulatory purpose and a criminal investigatory purpose.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Do you want us to use the Von Raab analysis and in Sitz we said when you have automobiles you don't, you use the Martinez-Fuerte analysis.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: And that's why Sitz said that, because Martinez-Fuerte, I believe, was there, indicating that for that seizure which was not a criminal investigatory seizure, which was part of the inherent regulatory right of the United States to regulate people and things coming into the United States, in that you use a balance, but if we abandon the cause requirement when it's a pure criminal investigation, then we will have seizures which are based on a perceived governmental need.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Would you allow a dog in a Martinez-Fuerte stop?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: A dog searching... if, in fact... if, in fact, this Court's case law allowed regulatory seizures at that point for purposes of contraband, yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It seems to me that you're really arguing that there's a difference between pretext when it's an individual officer acting and pretext when it's a regulatory program.</p>
<p>That's the heart of your case.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: It is, and I don't like using the word pretext because, again, I think the City of Indianapolis isn't being--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It's a word motive instead of pretext.</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: --It's a primary, what is the purpose, and this Court itself in Opperman said here the primary purpose is noncriminal investigatory.</p>
<p>In Burger the primary purpose is noncriminal investigatory, and the reason for that was because if it was a criminal investigatory purpose, there would have to be specific cause.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And what's the danger that you perceive in making the distinction between the individual and the programmatic?</p>
<p>Why do you make that distinction?</p>
<p>Why do you say there can't be a programmatic rem?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: Because the danger, then, I believe is that a sufficient government interest, the drug crisis, will be sufficient to overcome the privacy interests which this Court has always recognized as something held by individuals under the Fourth Amendment.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Mr. Falk, I asked Miss Millett earlier whether the dogs ever took longer than the license check, and she said no, that the license check takes three to five minutes, and the dog's done by the time the license check... do you agree with that?</p>
<!-- kenneth_falk--><p><b>Mr. Falk</b>: The record is not clear, Your Honor.</p>
<p>The only thing the record indicates is that there's an affidavit from an officer which says it's usually done at the same time, but it's also clear from the record that no one can leave the checkpoint until they're sniffed by a dog.</p>
<p>So it's clear that there are times when the last thing being done is being sniffed by a dog, and that makes sense.</p>
<p>If you're just checking licenses and registrations, it won't take five minutes, and given the size... there are 30 police officers there.</p>
<p>Given the number of cars, the dogs have to do multiple cars, and inevitably I believe there's going to be a wait for the dog.</p>
<p>But obviously, Your Honor, the risk here is that if we break down the barrier here and allow this seizure which is clearly for criminal investigatory purposes to occur without cause, then we will be faced with ever-increasing incursions which will be balanced away because if the problem is deemed serious enough, if the intrusion is deemed minimal enough, we will have seizures of persons on streets.</p>
<p>Rebuttal of A. Scott Chinn</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Falk.</p>
<p>Mr. Chinn, you have two minutes remaining.</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Thank you, Mr. Chief Justice.</p>
<p>I'd like to first clear up from our perspective one of Justice Breyer's concerns about what is the primary purpose or what are the purposes in this case.</p>
<p>It's clearly true that Indianapolis has wanted to primarily emphasize drug detection in these checkpoints, but it's also clear that we had three interests being served.</p>
<p>It's clear in the record.</p>
<p>We were so interested, in fact, in driver's license and registration checks being performed in this very set of checkpoints that 4.2 percent of the motorists stopped in these checkpoints were arrested for traffic violations.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And do you ever do other similar traffic, any registration checks without the drugs?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: It's not clear from the record whether we do, Your Honor.</p>
<p>I know certainly that we do in Indianapolis sobriety checkpoints quite all the time.</p>
<p>I'm not sure about driver's license and registration checkpoints apart from sobriety or drug checkpoints, but we're clearly interested in all three of these interests being served.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: How was it advertised to the public?</p>
<p>I forgot what those signs were.</p>
<p>I know there was a sign that said canine, but what was the other sign?</p>
<p>Wasn't it drug checkpoint ahead?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Yes, the signs... the signs display what our area of emphasis is for those checkpoints, which is narcotics detection checkpoint ahead so many miles, one mile, half a mile, canine in use.</p>
<p>Be prepared to stop.</p>
<p>That's what the sign said.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What is your... what is your take on whether... whether you have to wait after your driver's license has been checked for the dog to complete sniffing?</p>
<p>Do we know about that?</p>
<!-- a_scott_chinn--><p><b>Mr. Chinn</b>: Well, Mr. Falk is certainly correct, the record isn't absolutely clear on that.</p>
<p>My understanding is that the dogs do their work very quickly.</p>
<p>We're only talking about five to ten cars in a sequence, and the dog is led around each car really in a matter of seconds.</p>
<p>So it's my understanding in almost all situations the dog will be done with its work.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you all.</p>
<p>Thank you, Mr. Chinn.</p>
<p>The case is submitted.</p>
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Attribution:&nbsp;</div>
The OYEZ Project </div>
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Fri, 09 Jan 2009 14:50:30 +000058968 at http://www.oyez.orgFlorida v. White - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1998/1998_98_223/argument
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Case:&nbsp;</div>
<a href="/cases/1990-1999/1998/1998_98_223">Florida v. White</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Carolyn M. Snurkowski</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument first this morning in No. 98-223, Florida v. Tyvorus.</p>
<p>Ms. Snurkowski.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>Today the State is here before the Court seeking to have the Florida Supreme Court opinion in White v. State reversed based on that court's determination that a requirement under Florida law and under the Fourth Amendment to the United States Constitution mandates that there be a neutral magistrate sought and a warrant obtained prior to the seizure of a vehicle under the Florida Contraband Forfeiture Act.</p>
<p>The State would direct its attention to cases, in particular, Cooper, in particular, United States v. Watson as controlling in this case.</p>
<p>The Solicitor General will focus on the applicability of Horton to this case and the plain view theory that has been presented in some of the briefs.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The way this came up, Ms. Snurkowski, was that evidence was found in the ashtray or something of the car and that was introduced at trial?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, Mr. Chief Justice.</p>
<p>What happened on October 14th, 1993, the defendant was at his place of business.</p>
<p>The Officer Pierce and Officer Stewart had the ability to go there under a search warrant to arrest him for unrelated drug charges.</p>
<p>At that time, he was placed under arrest.</p>
<p>His keys were taken from him.</p>
<p>The keys to his car, which was in a parking lot, which was the Sam's parking lot... the car was taken, driven to the task force community.</p>
<p>It was not searched.</p>
<p>It was just seized at that point.</p>
<p>It was taken to the task force facility.</p>
<p>At that point it was searched.</p>
<p>Two crack cocaine rocks were found wrapped in toweling in the ashtray of the car.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And was the car taken because it was forfeitable, or was it taken just because he was arrested and something had to be done with the car?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: This was not incident to a lawful arrest and it was not because of anything more than the officers' belief that it was under forfeiture.</p>
<p>There had been three previous occasions when Mr. White was seen dealing drugs out of the car, and under Florida statutes 920... 32.701 through 04, the State has the ability to seek forfeiture of a vehicle that's used as an instrumentality.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So, from the moment they... they put the key in it and took it away it was because it was forfeitable.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, Your Honor.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And how long...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Did they have probable cause to believe that the vehicle had been used for the transportation of drugs?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: I'm sorry.</p>
<p>I didn't hear the first part of your question.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Did the officers... has it been determined that they had probable cause to believe that the vehicle, which they seized, had been used to transport illegal drugs?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, Your Honor.</p>
<p>There had been three previous occasions where one of these officers had personally observed and there were videotapes of the defendant actually selling drugs out of the car.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And Florida law makes the car used for that purpose to be... makes it possible to forfeit it to the State.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Subject to forfeiture.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Now, you don't rely on the G.M. Leading Corporation case?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, we do, Your Honor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I would have thought that was the closest case.</p>
<p>You didn't even mention it.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: I believe that that has been mentioned in the other briefs.</p>
<p>But, yes, in looking at this case, we believe that that is a pertinent and germane case to this one.</p>
<p>The reason the State started out with the Cooper decision is it's believed that that in that case there, the subject matter of scrutiny was the search following the seizure, and the seizure at that point was... was under a forfeiture statute and was not in question.</p>
<p>It seems reasoned and followed that if in this instance where the inventory search is not in question in this instance, that both the seizure and the search are satisfied... satisfies the Fourth Amendment with regard to practices engaged in by the Florida authorities.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Ms. Snurkowski, what...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: what troubles me about the case is the long time interval between the... between the time when the... the police had probable cause to believe that the vehicle had been used for a crime and the time when they elected to... to seize it as forfeit.</p>
<p>I... it just raises the possibility of... of the police creating a... a sort of a evidence depository by simply identifying a car and just leaving that car out there for years and years until they... until they finally determine that it... it has evidence that they'd like to have, whereupon they... they move in and seize it.</p>
<p>What... what assurance is there?</p>
<p>I mean, that doesn't seem right to me.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, first of all, in this instance, all of the activities that occurred that generated the need or the ability by the State to forfeit occurred prior to any activity going on with regard to this... this last event.</p>
<p>It wasn't that the car was suddenly sitting out there doing nothing.</p>
<p>There had been three occasions when Mr. White was selling drugs out of his car.</p>
<p>The probable cause that generated... was generated by that... was to forfeit the car.</p>
<p>It was not to ascertain or have probable cause to seize the car.</p>
<p>In fact, the car couldn't have been seized at the moment they saw the drugs being dealed...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, I know that, but that's my very point.</p>
<p>If you say they seize it right away, I don't see a potential for abuse, but if you say once they see it being used for a drug transaction, they can thereafter just put in their file, you know, license number, whatever, can be seized at any time, and then wait until they think there may be some evidence in that car.</p>
<p>And the real reason they're seizing it thereafter, or at least the real reason for their timing, is to obtain the evidence and not to... and not to forfeit the car.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, in all due respect, I think that under Whren, this Court has indicated that we are looking at an objective standard as opposed to a subjective standard.</p>
<p>The police officers have a legitimate basis under Florida's Contraband statute to seize the vehicle.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So, they could have done it 3 years later, 5 years later.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, there is certainly case law that reflects that the time... the... the... it seems to me that the probable cause doesn't become stale, doesn't change because the vehicle itself is the criminal act...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Not...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: the fact that it was used.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's exactly what troubles me, but you... you... you acknowledge that... that it could have been seized 10 years later.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, it probably could have been, but the... the likelihood of it passing scrutiny with regard to the ultimate review of the search itself... we are talking about whether you have to go to a neutral magistrate to seize the car.</p>
<p>It's...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Would you apply this, Ms. Snurkowski, to a Venice-type case?</p>
<p>Let's say, the... the city has an ordinance that if you engage in prostitution in your car, it will be forfeit, and then the police say, oh, we saw this guy two, three times in the summer.</p>
<p>And then it gets to be October, and his car is sitting out there in a shopping mall.</p>
<p>And they say, oh, now, well, now, we can take the car because we saw it three times this summer, and if we are questioned about it after, we'll say that, but we don't have to go before any magistrate or anything like that.</p>
<p>I take it from what you've said so far that that would also be okay.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, I believe...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: There's no distinction between those two situations.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: I... I believe that the instrumentality itself, the car is what is the offender here, not the actions.</p>
<p>The actions may precipitate that the car is being used, and it may be incident.</p>
<p>And, in fact, under Florida statute there is a defense to incidental or accidental use by the vehicle and therefore it's not subject to forfeiture.</p>
<p>But if it's... if it's part of the criminal conduct, and in this instance perhaps where one is soliciting for prostitution, the car in and of itself might not be...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I'm giving you a local ordinance...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: I'm sorry.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: that was before this Court where the car was forfeit if it had been used for an act of prostitution.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Right.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And I asked you if in that particular case, the car was impounded on the spot.</p>
<p>But suppose it hadn't been taken then, and the police said, well, it's forfeit, so we'll take it 2 months later.</p>
<p>And let's take another case in that same line.</p>
<p>Let's suppose the city has a measure that says, cars that are driven by drunk drivers are forfeit.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Right.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And someone is apprehended for drunk driving, and the police decide, for whatever reason, they're not going to take the car that day and 3 months later they see it at the parking lot of the place of employment and they take it.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, I think it depends upon... again, we're... the case before the Court is the forfeiture act with regard to the drugs and other criminal endeavors.</p>
<p>But to expand it to the argument or the suggestion that you have made that it has do with drunk driving, as we have seen news stories out of... coming out of the State of New York, that very well may be a basis if, in fact, it's the instrumentality used to... for help and involved in the crime itself.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I don't suppose getting... if delay is a problem, I don't suppose getting a warrant would change things.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Absolutely.</p>
<p>And...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, but would this issue come... I mean, the reasonableness of the search is going to be judged in part by reference to the... to the... or the reasonableness of the seizure is going to be judged in part by reference to the object of the seizure.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Here the object of the seizure is... is punishment.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: It's an extra penalty for... for the... for the... the act involving the contraband.</p>
<p>And I think it's probably accepted... I think it's accepted... theory today that the further in time between the act that is being punished and the imposition of the penalty, the less effective it is, the less reasonable it is to be imposing it.</p>
<p>So, it would see to me that there's a fair argument that the longer the police wait without some kind of... or the State waits without some justification, the further removed the seizure becomes from the... the... a reasonable relationship to its object.</p>
<p>And at some point I suppose that would affect the Fourth Amendment analysis.</p>
<p>And I also assume it would affect the Fourth Amendment analysis if a warrant were being applied for.</p>
<p>Is that an illegitimate argument?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: I think there is probably some truth to the fact that time could pass along, but it doesn't mean that the probable cause in any way deteriorates.</p>
<p>It may be other factors...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, that's... that's right, but the ultimate question is the reasonableness of the search, and you've got to have the probable cause, but we all know probable cause can, in fact, be dissipated or... or rendered nugatory by various things that happen after you get it.</p>
<p>And in Justice Scalia's example, the 5-year wait... I mean, it... it really stretches credibility to say that a 5-year wait without, you know, some extraordinary excuse that we don't have in our hypo, can reasonably be related to the ostensibly punitive object of the law.</p>
<p>And if that is so, don't we in, let's say, the 5-year example... don't we have to confront the unreasonableness of the search in relation to its object?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, Your Honor.</p>
<p>And in fact, I don't...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, would you agree that the 5-year search would violate the...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: It very well...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I keep saying search.</p>
<p>You know...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Right.</p>
<p>Seizure.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I mean seizure.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: It very well... it very well may be, but it doesn't impact with regard to the probable cause.</p>
<p>It impacts upon the reasonableness.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: And that certainly would be something that would be under scrutiny upon a challenge to the validity...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, it might affect the...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: of the seizure and ultimate search.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It might affect the probable cause determination in this regard.</p>
<p>If you get a warrant, you have the judge or the magistrate makes the determination, whereas there is an advantage there.</p>
<p>And secondly, presumably the magistrate would make it promptly, and then you'd have the warrant in the... in your desk to use whenever you want to serve it.</p>
<p>Whereas, if you wait 3 years or 6 months to do it, then you have to... your probable cause determines... is based on what you can remember of what happened 6 months earlier and the facts are less clear than if they're established and the warrant obtained at the time.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: That's true, but the underpinnings of the probable cause here is that some... an instrumentality, a car, was used during the course of the criminal endeavor.</p>
<p>That's the basis upon which the probable cause arises under the Florida statute.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, again, if... if delay is a problem, do you think the problem would be alleviated by keeping a warrant in the police officer's desk for 3 years and then serving it?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: No, Your Honor, and that was what I was trying to get to.</p>
<p>The... the point is that on the facts of this case and I believe most of the facts as presented in the hypotheticals, a magistrate would have issued a warrant the next day or 10 days or 100 days because it was... if there's probable cause to believe that that vehicle in fact was used during the course of a criminal endeavor, to wit, selling drugs, that... that car cannot wipe...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yes, but...</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: itself away of the crime.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But that also survives transfer of ownership.</p>
<p>Say somebody... say the car was sold in the meantime.</p>
<p>You'd still be able to seize the car.</p>
<p>If you had the warrant and you go to the new owner and say this is why I'm seizing it.</p>
<p>The judge decided it was used this way.</p>
<p>If you go to the new owner 3 or 4 months later and say, well, your predecessor owner used this car improperly, we're going to seize it, it seems to me there's a... factually the citizen might react a little differently to the service in the two cases.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: But in fact... but in fact under the statute, there is a very speedy ability to have redress with regard to wrongful taking of the vehicle, and in fact, under...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But it wouldn't be a wrongful taking, would it?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I mean, the new... the new owner wouldn't have a defense, would he?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Yes, because under the statute, it applies to those individuals who... under the Florida statute, it applies to those individuals who are innocent with regard to...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, but then it's not just the vehicle is... it's not like the deodand.</p>
<p>The vehicle is not the... the criminal.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, it... it can be wiped clean in... in...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: By selling it?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Pardon me?</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: You can... you can exonerate the vehicle by selling it?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, under the Florida statute, it shows... we have a provision that says, for example, a spousal ownership.</p>
<p>If that person can demonstrate that they had no knowledge with regard to that, that the car will not be forfeited.</p>
<p>So, there are provisions that protect, but that doesn't mean to say that because we put provisions that protect, that the instrumentality suddenly is cleansed.</p>
<p>It just means that we're not going to forfeit because this is not the car that...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Put the spousal one aside.</p>
<p>What about sale to an innocent, bona fide purchaser?</p>
<p>Is that person subject to forfeiture or not?</p>
<p>Does that cleanse the car?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: The car is not cleansed.</p>
<p>What happens is that the purpose for forfeiture has changed because it's no... the car no longer is being forfeited because somebody engaged in a criminal endeavor, if an innocent person now owns that car.</p>
<p>That person didn't do anything to that.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: No, but the car had been used... the car committed the crime I thought under your theory.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: That's right.</p>
<p>Under forfeiture theory, the crime... when the crime occurs, the car becomes an offender or offendee...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And it ceases to be an offender when it's sold.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Well, it doesn't cease to be that, but it certainly... it has... it has less basis for support for the ultimate forfeiture of that vehicle.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I don't see why.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Is time for executing a warrant unlimited in Florida?</p>
<p>If a magistrate gives a warrant, can it be executed 3 months later or 4 months later?</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: There's no specific provision that allows for a time limitation.</p>
<p>Thank you.</p>
<p>Argument of Malcolm L. Stewart</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Snurkowski.</p>
<p>Mr. Stewart, we'll hear from you.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Mr. Stewart, would you mind telling us exactly what kind of an exception to the warrant requirement you're supporting here?</p>
<p>It certainly isn't clear to me from the State's argument...</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: The rule...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: what the State's asking for.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: The rule we're advocating... and I think it is supported by a number of this Court's decisions... is that when items of personal property are found in public areas, they may be seized by law enforcement officials based on probable cause without a prior judicial warrant.</p>
<p>Now, some of this Court's...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: So... so, if the vehicle had been parked in the owner's driveway, could it have been seized?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: The driveway is a close question.</p>
<p>If it had been parked in the owner's garage, for instance, an area in which the owner would clearly have a reasonable expectation of privacy, the car could not have been seized on our view without a warrant.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: So, what's your position on the driveway or the curtilage?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Our position on the... our position on the driveway, generally speaking, is that a driveway is not within the curtilage, and therefore the owner would not have a reasonable expectation of privacy in it.</p>
<p>There was actually a case in the Seventh Circuit, United States v. Redman, that involved a related issue in which law enforcement officials conducted a search of trash cans located at the... the point of the individual's driveway that was closest to the house.</p>
<p>And the en banc Seventh Circuit split 8 to 5, held that the individual did not have a reasonable expectation of privacy in his driveway.</p>
<p>We think the same rule would apply to seizures of a vehicle from a driveway, but in fairness, given the way that the Seventh Circuit divided, we can't say that that's a settled question.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: It depends on how much is left of the Coolidge decision.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: That's correct.</p>
<p>But... but at any rate, the dividing line would be as to any particular location, did the individual have a reasonable expectation of privacy in this place?</p>
<p>The garage, clearly yes.</p>
<p>A public parking lot, clearly no.</p>
<p>The driveway is... is somewhere in between.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Is the purpose for the forfeiture, as you understand it, because this particular chattel is... is a nuisance?</p>
<p>It is a dangerous instrumentality.</p>
<p>It should be removed from the...</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Well, I mean, a car...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: from the streets?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: A car is not per se dangerous.</p>
<p>Clearly part of the...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Why are we forfeiting?</p>
<p>In order to impose a punishment?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: It is partly to impose a punishment.</p>
<p>It is partly out of a belief that so long as the car remains in the hands of this owner who has previously utilized it to facilitate criminal activity, there is a danger that that activity will... will occur in the future.</p>
<p>So...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Now, if... if the latter is the rationale, then doesn't the delay that we're concerned about enter into the calculus?</p>
<p>That is to say, if there's a long, long delay before the automobile is seized, doesn't that indicate that it is not such a dangerous instrumentality, that forfeiture should be used?</p>
<p>I'm... I'm trying to... to find some standard by which we could protect owners against the unreasonableness that is caused by deliberate delay, which can be used to harass persons.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: I guess I'd have a couple of responses.</p>
<p>The first is that at least in most cases, the owner can't claim to be injured simply by the fact that he's allowed to retain and use his property longer than he might have been.</p>
<p>I think second we would draw an analogy to warrantless seizures of the person, warrantless arrests.</p>
<p>That is, it's established law that a warrantless arrest may be conducted in a public place without a warrant even though a warrant would be required in a private place, and it might seem intuitively as though once police have probable cause to believe that an individual had committed a crime, the natural thing to do would be to arrest him immediately in order to remove the... the danger from the streets.</p>
<p>However, I think it's generally understood that there may be countervailing concerns that would justify some form of delay.</p>
<p>The police might want to see whether this person was acting in confederation with others, might want to see whether it could locate bigger operatives within the criminal organization.</p>
<p>And, therefore, the police are not required to arrest an individual as soon as they have probable cause to believe that he has committed a crime.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Then you're saying there's sort of a notion of reasonable delay, but conversely I assume there... there... there is the thought in... in what you're saying that there might be an unreasonable delay in seizures.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Well, certainly the... the primary limitation on the amount of delay that would be considered reasonable in the arrest context is the statute of limitations.</p>
<p>That is, as a practical matter, the... the police couldn't wait so long to arrest the individual that the statute of limitations had expired.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<p>Well, let's get to a case, you know, a seizure case like this.</p>
<p>I threw out the idea in... in talking with... with your colleague that if the... if the object is... is essentially punitive, then there's a point at which the punitive rationale really begins to evaporate, and I don't know when that point was reached, but we thought perhaps if there had been a 5-year wait, it would have evaporated.</p>
<p>Would you agree with that?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: I... I think it would depend upon the... the circumstances.</p>
<p>I think the first place we would look is to see whether the legislature that had established the forfeiture statute had itself made the determination as to what period of delay was unreasonable.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You know, that might be a good basis for us to inform ourselves about contemporary standards of reasonableness, but at some point the reasonableness would dissipate, I take it, on... on your rationale.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: At some point.</p>
<p>I think that has nothing, with respect, to do with the warrant requirement.</p>
<p>That is, if for instance...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I... I... I agree with that.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: If, for instance, Florida by statute had said property can't be forfeited based on its use in criminal activity more than 5 years ago, then if police have evidence that the car had been used to facilitate narcotics offenses 6 years ago, the seizure would be no good because there would be no probable cause to believe that the property was forfeitable under the statute.</p>
<p>That would be so regardless of whether the police attempted to seize the vehicle without a warrant or whether they went to a magistrate with a warrant.</p>
<p>And as the Chief Justice pointed out, I think to the extent that the Court regards the possibility of unreasonable delay as a problem, it's not a problem that would be solved by imposition of a warrant requirement.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Do you rely here at all on the fact that the car is a movable object and...</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Certainly we think... the rule we propose is not automobile-specific, but we certainly think that the mobility of automobiles reinforces the general principle announced in this Court's decisions...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I would have thought the principle didn't rest at all on that.</p>
<p>Am I wrong?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Well, what... what the Court has said in...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: In this case where there's a forfeiture statute because of the use of the vehicle.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Well, the general principle this Court has announced is that items of personal property found in a public place may be seized with... without a warrant, and one of the justifications the Court has given for that general rule is that, at least in many instances, the property... personal property, is susceptible of being moved away quickly, and we think that is all the more true in the case of an automobile.</p>
<p>But the... the rule, as we propose, as I say, is not automobile-specific.</p>
<p>It is probably the type of rule that is particularly likely to be invoked with respect to automobiles simply because the automobile is a type of personal property that is very often left in... in public places.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Mr. Stewart, you said a second ago... I agreed with you a second ago... that the problem of staleness and dissipation of reasonableness is going to occur whether there's a warrant or whether there isn't, and I... I think that's right.</p>
<p>It doesn't, though, I think follow as... as you suggested a second later that that makes the warrant requirement irrelevant because it seems to me that if there is a warrant requirement, we're going to have some magistrate considering at the time the warrant is issued, i.e., prior to the actual seizure, whether in fact the delay has dissipated the reasonableness of the search on... on the... on the theory on... on which forfeitures are... are required.</p>
<p>And, therefore, we... we will have a situation, if there's a warrant requirement, in which some cars are not going to be seized illegally.</p>
<p>And so, it would seem to me that if there is, in fact, a dissipation rationale, there is a good reason, therefore, to... to have a... a warrant requirement so that there is... there is some neutral judgment between the officer and what may be a quite unlawful seizure.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: I think... I think that that is not true because the problem you hypothesize is no different in principle from the problem that may always occur when the police undertake a warrantless seizure of property from a public place.</p>
<p>That is, it is always the case that police might misjudge the question of whether there is probable cause to effect the seizure.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yes, but here we're not talking about... I mean, you're quite right.</p>
<p>They... they may get the probable cause wrong.</p>
<p>But now we have yet a... a further element, and it's not a probable cause kind of judgment.</p>
<p>And therefore, doesn't the further element at least provide a further reason for saying that... that a warrant would... would, in fact, be helpful in effectuating the Fourth Amendment?</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Well, the...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That's true, maybe we can get by without it, but something would be served by recognizing it.</p>
<!-- malcolm_l_stewart--><p><b>Mr. Stewart</b>: Well, the further element would simply be the legal determination of what period of delay would be regarded under the law as unreasonable.</p>
<p>And that again is no different in principle from the judgment that police may, when they decide whether to effect a warrantless arrest... that is, in order to determine the existence of probable cause, they have to decide not only what has this person done, but what does the law require or prohibit.</p>
<p>And consequently, the probable cause determination is inevitably entwined with police officers' judgments about the applicable legal standards.</p>
<p>They may get those wrong and it's true that interposing a magistrate might reduce the incidence of error.</p>
<p>Thank you, Mr. Chief Justice.</p>
<p>Argument of David P. Gauldin</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Stewart.</p>
<p>Mr. Gauldin, we'll hear from you.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The State of Florida had 68 to 80 days in which to obtain a warrant to seize this vehicle.</p>
<p>They didn't bother.</p>
<p>The State of Florida has now had 6 years and about 20 minutes to explain to explain why they didn't get a warrant.</p>
<p>They haven't done so adequately.</p>
<p>Simply our position is this.</p>
<p>None of the traditional warrant exceptions to the Fourth Amendment apply.</p>
<p>There is no civil forfeiture exception to the Fourth Amendment, and under the circumstances of this case, the police were required to get a warrant...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: How do you distinguish the Cooper case and the G.M. Leasing case?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Cooper v. California only dealt with a subsequent inventory search after the car had been seized.</p>
<p>The issue was not placed before the Court as to whether the seizure was appropriate.</p>
<p>No one argued that, so that issue was not decided by this Court.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but the Court certainly assumed that the seizure was appropriate.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: It may well have assumed it, but that just simply was not an issue before the Court.</p>
<p>At that point, it was assumed that it was valid, and the only issue that you decided was once it came lawfully into the police's hands... into the police hands, whether they have a right to conduct an inventory search.</p>
<p>And Cooper v. California, as far as I read the decision, simply stands for that proposition.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How about G.M. Leasing?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: G.M. Leasing represents the tax levied on a public street exception of the Fourth Amendment.</p>
<p>In G.M. Leasing, as you'll recall, the revenue agents went first to the home of who turned out to be the fugitive tax debtor 2 days prior to the seizure of the car, and they informed the wife, I believe it was, of the tax debtor and also the son that there was a tax debt and that their assets were subject to...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, G.M. Leasing involved a warrantless seizure of a vehicle in a public place, and this Court upheld it.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, but G.M. Leasing was not a forfeiture case.</p>
<p>G.M. Leasing was a case where the Government had a tax debt that it was satisfying, which it did by first filing a lien 2 days prior to the seizure in the Salt Lake City County courthouse and then proceeded to levy on the Government's debt.</p>
<p>Moreover...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Why should it make any difference the fact that it wasn't a forfeiture?</p>
<p>Why should forfeiture produce a special... a special class of rules in connection with a warrant and no warrant?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Probably because tax assessments seemed to create a special class.</p>
<p>The tax assessments...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, is that what... the Court didn't say that in G.M. Leasing.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: What the Court did say...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I mean, you... you can... you know, you can say that South Dakota against Opperman, the inventory case, involved a van, so it doesn't cover a car, but we don't distinguish cases that way.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: What the Court said in G.M. Leasing, it went back to the history of the tax legislation and the taxing power, which is a constitutional power, it went back to the history of that and said almost...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, you say... you say the taxing power is a constitutional power.</p>
<p>Do you think that the enactment of a forfeiture statute by Florida is not a constitutional power?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No.</p>
<p>It's a statutory... it's a statutory right that they're giving law enforcement.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but certainly under the allocation of government in our system, the Florida government has as much right to enact a forfeiture statute as the United States has to enact a taxing statute, does it not?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: It certainly does that.</p>
<p>But first, the Constitution specifically provides for the collection of taxes.</p>
<p>Secondly, in Bull v. United States and various other cases that you have dealt with in relation to taxes, you have justified this on the base... basis of the prompt collection of the revenue of taxes saying that, in fact, the very realm... or the very United States Government depends upon the prompt collection of taxes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, I think the question, at least mine, would be, how could it be a reasonable thing to seize a car in a public place without a warrant to satisfy a tax debt, but it wouldn't be a reasonable thing to seize an instrumentality of a crime, the car, in a public place?</p>
<p>I mean, how could the one be reasonable but the other isn't?</p>
<p>An instrumentality of a crime would seem as historic, as necessary, at least as seizing a car to satisfy a tax debt.</p>
<p>I mean, that's the same question, but I'm looking for the distinction.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, one thing, of course, the tax debt has been determined to be a tax debt.</p>
<p>According to your tax bases, they...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You mean you have to determine it beyond probable cause?</p>
<p>In other words, just having the probable cause to seize the car to satisfy the debt, they wouldn't have been able to do it?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: To satisfy the debt or the forfeiture?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No.</p>
<p>To satisfy the debt.</p>
<p>I mean, does... what was the... is that... is that open?</p>
<p>I mean, in other words, you're saying of G.M. Leasing, if they hadn't had... if they just had probable cause, it would have been constitutionally forbidden?</p>
<p>Is that the point?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, G.M. Leasing was not a case that involved probable cause.</p>
<p>What G....</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: No, but the Court in G.M. Leasing specifically said it took the case limited to the Fourth Amendment issue, and because there was probable cause, even though it was a warrantless seizure, it occurred in a public place and it was valid under the Fourth Amendment.</p>
<p>Now, I mean, the Court didn't get into this tax issue at all.</p>
<p>I think you have a very hard time distinguishing the principle involved in that case.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Whether it's reasoned or not... whether it did or didn't get into it, my problem is one of logic or reason, not a problem of precedent.</p>
<p>I don't see the distinction between... well, you heard what I said.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Okay, well...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What is the distinction in your view?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: The distinction, at least in my view, is that at least in the civil forfeiture area, they did not have a specific exception that has been validated by this Court to the Fourth Amendment for a seizure.</p>
<p>There now exists, as I said early, a specific exception for the seizure for tax levies, which means a tax judgment, because a tax assessment is equivalent to a tax judgment.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, we make a lot of exceptions to other constitutional principles in the tax field, don't we?</p>
<p>I mean...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, we do and I hope...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: We... we allow the Government to take your property before the... the actual tax judgment is issued, don't we?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, we do, and in fact Bull v. United...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They can take it now and... and... you know, and try the tax case later.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: That's exactly right.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: We don't generally allow that in the criminal law, do we?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, we do not, and that's what Bull v. United States says, that that's the system that we have in taxing: the assessment comes first and the defense comes second</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Maybe... I don't... maybe we trust tax gatherers more than we trust criminal law officials.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: I don't know, but in light of the legislative problems and hearings recently, maybe you'll reconsider that.</p>
<p>But that's not the case here.</p>
<p>The case here...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I want to... I'm sorry.</p>
<p>I want to make sure I understand your... your... your response to Justice Breyer.</p>
<p>Was it your response, in effect, as to G.M. that in the G.M. case there had, in fact, been a tax judgment and that that would have been the analog of the hearing before the magistrate and, therefore, there was a kind of process that had been satisfied there going to the question of the reasonableness of the seizure?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: There was not only a kind of process because first a tax assessment had occurred, which is equivalent apparently in tax law to a tax judgment.</p>
<p>Secondly, a lien had been filed, and third, they had gone to the place and informed at least the wife of the tax debtor of the imminence of that.</p>
<p>So, they had notice and opportunity that the seizure would occur.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay, but I take it then... I just don't remember this.</p>
<p>They... there had never been even an ex parte judicial proceeding in the G.M. case, had there been?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, other than that they went to the county courthouse and filed a tax lien so at least you had notice and opportunity, which is more than... than you have here.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Notice and opportunity to do what?</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: may not even know it.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: To institute whatever procedures...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Stake out in front of the car and... and meet the seizure with armed force?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What... what good did the notice do you?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, the notice did do them something because they hauled a bunch of crates of information and stuff in the other part of G.M. Leasing.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, notice provides legal notice in... as... on a constructive notice theory, but in fact, the... the owner of the property may not have any actual notice whatsoever.</p>
<p>I mean, a filing is simply a filing.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: True, although... and you're right, they're placed on constructive notice.</p>
<p>But the owner of the property, at least the wife's owner did know, and the only the reason the owner of the property didn't know because he was a tax fugitive at the time.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But this was not part of the Court's rationale in G.M., was it?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: That was part of the foundation from which the Court's rationale sprung.</p>
<p>That is to say...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, it was the... it was a fact of the case, but the Court did not explain that fact as being essential to its holding, did it?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No.</p>
<p>The Court essentially explained that the immediacy for the collection of revenues has historically been an exception for a seizure of that sort for a tax assessment.</p>
<p>And that... I think it's paragraph C.</p>
<p>I forget.</p>
<p>It's just a very narrow, little area where they actually talk about the seizure of the car in G.M. Leasing.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So, you're saying there was a kind of economic exigency rationale in G.M.?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: The Court in G.M. indicated it was an economic exigency, and they cited about three or four very old cases for that proposition, Bull v. United States, Springer, and several other cases.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It is your position, as I understand it, that a warrant would have been necessary even if that car had been seized when they first saw it being used in an illegal drug transaction, assuming... assuming that there were no exigent circumstances, that they... they had time to get a warrant.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: If there were no exigent circumstances, yes.</p>
<p>If none of the traditional exceptions applied, yes, they would have had to get a warrant.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It isn't just if you... if you don't seize it right away when you're seeing it being used illegally and you want to seize it later you need a warrant.</p>
<p>You need a warrant all the time.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, you don't need a warrant all the time.</p>
<p>If they actually came upon him while he was, for instance, selling drugs out of the car and they had probable cause to believe that drugs were in the car...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Right.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: and that the car was movable or may be moved because the occupants were alerted, then I think the car exception would apply, at least to the point where they could...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, so then... then your answer is that if... if they had seized this particular car when they first saw him dealing drugs out of the car, they could have done it without a warrant.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, if they had done it right then.</p>
<p>Yes.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: So, it's just... that certainly wasn't the reasoning of the Supreme Court of Florida.</p>
<p>The... I don't think the Supreme Court...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: What the Supreme Court...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I'm... I haven't finished.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: I'm sorry.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I think what the Supreme Court of Florida relied on was just the fact that you need the warrant regardless of any delay.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: The Supreme Court of Florida I think said that there were no exigent circumstances and that that was admitted by the parties below, and that that's why the car exception was inapplicable.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Yes, and so... but did you read the opinion of the Supreme Court of Florida as relying on this delay factor?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: I think delay was intrinsic in it because once there's a delay...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: You say it was intrinsic.</p>
<p>Did the Florida Supreme Court mention the word delay in its opinion?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: The Florida Supreme Court set out the dates that occurred between the illegal activities that occurred and the ultimate arrest of the person and the seizure of the car.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But did they rely on that in their reasoning?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: What they... well, their reasoning was that simply the car exception didn't apply because there were no exigent circumstances.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Can you help me with another thing which I haven't found...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Sure.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: and you probably know.</p>
<p>I have a bell in my mind that there used to be something called the Government's power to seize contraband in a public place or an instrumentality of a crime.</p>
<p>Is there no such historical tradition that the Government can take the instrumentality of a crime in a public place?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, I think what you're talking about is...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What am I talking...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: the plain view exception, and under the plain view exception, that if the officers are in a public place and they come across either evidence of a crime or per se contraband, that is, contraband which is just unlawful for anyone at any time to possess, then they can seize...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What about an instrumentality of a crime?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No.</p>
<p>I think what we have here is derivative...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, but I'm... I'm saying in terms of what you just said, is it part of that tradition that they could seize in plain view an instrumentality of a crime, which I guess would be evidence of a crime?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, if it's evidence of a crime.</p>
<p>The car...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: There's not... there's no separate thing for instrumentality of a crime.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No.</p>
<p>The two that I understand are evidence to be used in a crime or contraband, per se contraband.</p>
<p>Now, in One 1958 Plymouth Sedan, you stated that a car, such as the car in this circumstance, where drugs may have been sold out of it... in that case I think it was alcohol that carried it... that that is derivative contraband.</p>
<p>That's not the same thing as per se...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, no.</p>
<p>That's not contraband, but the reason that this is not evidence of a crime is?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: First place, they didn't seize it as evidence of a crime.</p>
<p>They didn't introduce it below as evidence of a crime, and more importantly, when an officer seizes evidence of a crime, an officer doesn't then take the evidence back and proceed to either sell the evidence and keep the proceeds or to use the evidence for their own personal benefit, which the statute allows.</p>
<p>The statute allows the seizing agency to either keep the car that they seize for the agency's purposes or...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I thought forfeited items were often evidence of the crime and would often be sold, if that's what the law provides.</p>
<p>I mean, isn't the car that you're selling drugs out of often, if not here, evidence of a crime, namely the crime of selling drugs?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Not usually.</p>
<p>There may be purposes for which it can be.</p>
<p>For instance, Cardwell v. Lewis.</p>
<p>In Cardwell v. Lewis, they came and take... took paint chips off of the car and then the car might have been evidence in a crime because their theory in Cardwell v. Lewis was that the car bumped a victim off and hit the victim's car.</p>
<p>And, therefore, it was evidence of crime, but that's not the situation here.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Mr. Gauldin, what do you make of the... the history which I... I think was put forward in the Government's brief that... that on the heels of the proposal and the adoption of the Fourth Amendment, the Congress of the United States passed legislation which, among other things, authorized the seizure of... of ships that had been used in carrying contraband and smuggling and... and... and it authorized the seizure without any warrant?</p>
<p>And this apparently has... was... was never thought challengeable at the time and is, therefore, some evidence of... of the extent that they understood the warrant requirement of their... their... their new... their new search and seizure provision to... to cover.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, for ships are... I hate to mix analogies, but a horse of a different color.</p>
<p>Ships are on international waters.</p>
<p>You have one option with a ship, and that is to seize the ship because if you don't...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, yes, the ship can... can leave the harbor.</p>
<p>The car can, you know, be driven to California.</p>
<p>It seems to me that there's a pretty good analogy there.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, at least if it's driven to California, it's still within the continental United States and it's much easier to locate a car...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mexico.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Baja California.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's what he meant.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Even then it's limited, but it's easier to track a car at least while it's doing that, through registration and various other means, than it is to track a vessel on international waters, particularly a vessel owned by foreign powers.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Do... do you have another basis for distinguishing that practice?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: What the maritime?</p>
<p>Other than it's historic for maritime because that was the only... that was the only practical thing they could do for a ship.</p>
<p>A foreign power owned the ship.</p>
<p>If they didn't bring the res before the court, they could do nothing except maybe go to war with the other country.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, I would have supposed that if there was a ship in the harbor that had been shown to... to have goods being smuggled in, that they could have gotten a warrant for it.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: I suppose they could, but again because of what... the...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: In any case, your argument is that the ship involves again a... a justification of exigency and that that's not present with the car?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Pardon me.</p>
<p>I didn't hear that.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That the seizure of the ship without a warrant rests on a justification of exigency, whereas the seizure of a car under a statute like this does not.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, yes, yes.</p>
<p>Which brings up actually Calero-Toledo.</p>
<p>In Calero-Toledo v. Pearson Yacht Leasing Company, a vessel was involved, and what they sought in Calero-Toledo was an adversarial pre-seizure hearing.</p>
<p>And in Calero-Toledo, you said that there were three reasons as to why that they were not entitled to an adversarial hearing prior to seizure of the ship.</p>
<p>The first reason was that it would place these people on notice that the owners or possessors, in that case the possessors, of the vessel... it would place them on notice, and that they then might abscond with the vessel.</p>
<p>The second thing you were concerned about in Calero-Toledo was that if you gave them an adversarial hearing, which we're not asking for here... that if you gave them an adversarial hearing, the delay occasioned by that would allow them to continue to use the vessel for illicit purposes.</p>
<p>And the third thing you noted in Calero-Toledo was... or the third reason for which you decided Calero-Toledo was that the disinterested government was the seizing agency and not some interested private... private agency.</p>
<p>Taking the first reason first, we're not asking for an adversarial hearing.</p>
<p>An adversarial hearing might put the person in the car that allegedly has carried illicit contraband on notice, and might give him a reason to flea, but an ex parte judicial warrant won't do that.</p>
<p>Secondly, there is certainly no evidence in this case that the government was concerned about continued use of the car for illicit purposes.</p>
<p>If they had been concerned about that, they wouldn't have waited 68 to 80 days until, what I contend based on the record, they cavalierly went down and seized the car.</p>
<p>And thirdly, the third reason in Calero-Toledo, the government is not disinterested in this case.</p>
<p>The seizing agency benefits from this.</p>
<p>In Harmelin v. Michigan, you said when the government benefits... when the government benefits, you have to scrutinize the government more closely.</p>
<p>That is the situation that exists here.</p>
<p>The government is going to benefit.</p>
<p>The seizing agency is going to benefit, and human nature being such it... as it is, that is going to color the issue of probable cause.</p>
<p>When a neutral and detached magistrate makes the determination of probable cause, the neutral, detached magistrate is not only not engaged in the competitive enterprise of ferreting out crime, but the neutral and detached magistrate is not going to get a piece of what's seized or revenue for what's seized.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why... why was that not the situation in Calero-Toledo?</p>
<p>That was not a government seizure?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No.</p>
<p>It was a government seizure, but they said the disinterested government.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Oh, that was a disinterested government.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Right, right.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: How do you tell the one from the other?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: All I know is that in Florida we've got an interested government because...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I see.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I see.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: the seizing agency is going to get the proceeds.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Who was going to get the proceeds from the ship in... in Calero-Toledo?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: I don't know and I'm not sure how the... that was a Puerto Rican statute and I'm not sure exactly what occurred with the Puerto Rican statute.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You think maybe it was going to be distributed as a tax refund to the populace at large?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: I doubt it.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I don't see any difference between that case and this one.</p>
<p>I think it very likely that the money was going to go into the government's treasury.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: It may... there's a difference between the money going into the government's treasury where it goes into the general fund as opposed to where the seizing agency, the officers that get to seize it, get to either keep the vehicle and, say, use it for under cover purposes or later...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I see.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, do they... I know this happens in some cases.</p>
<p>I don't know if it's in Florida.</p>
<p>But if they sell the... the seized vehicle, does the money go into, in effect, an appropriation account for the police agency itself?</p>
<p>Do they... can they fund themselves out of this?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, yes, although there's... there's a formula I think set up in the Florida statute as to which police agencies and hierarchy and all that get a cut and how, but the seizing agency does get a cut.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But it's law enforcement that gets funded, in effect, with this money.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, law enforcement does or law enforcement... the agency gets to use the car.</p>
<p>If it likes your SUV and wants to...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yes.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: they can keep it.</p>
<p>They don't even have to put it in the pot.</p>
<p>They don't have to go sell it.</p>
<p>They can use it under the statute.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And I... do you know... I mean, I think... I think I can suspect the correct answer, but I'll ask anyway.</p>
<p>Do you know whether there was any such scheme as this in place in... in the 1790s in the instance of the ship seizure that I was talking with you about earlier...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, I don't...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: whether the...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, I don't know whether the... the people that seized it got it.</p>
<p>No.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That's probably a modern notion I would imagine...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Oh...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: that you... that you fund your agency out of the proceeds of... of your forfeitures.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, very modern, in fact.</p>
<p>In fact, as I understand that, that was the idea behind the Federal statute.</p>
<p>And the Federal statute is similar to the Florida statute in this respect, that is, that the seizing agency gets the option of either... of either being able to keep the... the goods themselves.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's a healthy incentive to enforce the law, don't you...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: It is indeed, and too healthy if a magistrate hasn't reviewed it to make sure... the magistrate serves an auditing function in the sense that... you know, not that I imply that the law officers are dishonest, but it will keep them honest.</p>
<p>Moreover, on the real borderline cases, this is all the more reason that you want a disinterested, neutral, and detached magistrate.</p>
<p>Finally, the government I think relies upon the Watson case with the idea that if you can seize a person in a public place, why can you not seize the property itself.</p>
<p>You have already addressed that.</p>
<p>The answer to that, of course, is that, first, this is a civil forfeiture case.</p>
<p>This is not a criminal case.</p>
<p>You have certain safeguards of a constitutional nature, Gerstein v. Pew, for the seizure of a...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: You say that Watson... Watson was a criminal case...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Watson was a criminal case, yes, but this is a forfeiture case.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And does... why is that different?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Pardon?</p>
<p>Oh, because in... you have civil remedies.</p>
<p>You have civil standards; that is to say, probable cause and all is the ultimate standard for the forfeiture of the vehicle.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But you would think perhaps that there would be more protections against seizure in a criminal case than there would be in a civil case.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: There are for a person.</p>
<p>For instance, you get a first appearance in Florida within 24 hours.</p>
<p>You get the right to counsel if...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But you... but you can be arrested without a warrant.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: You can be arrested without a warrant for a felony outside of your home under Watson, under the circumstances of Watson.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So, if the police need a warrant to... to arrest, in effect, or seize a car in a public place where they have probable cause to know that the... the car was an instrumentality of a crime, I would certainly think a fortiori they would need a warrant to arrest a person in a public place, although they have probable cause to believe that the person is or has engaged in a crime.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, the Watson decision holds otherwise in that respect...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: No, no.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I'm talking about logic.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Oh, yes, logically... not only logically, but as I recall Justice Powell said that logic would dictate that, but that history is against it.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: All right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So, what we do if we decided in your favor, we would then have to say that these other cases were wrong but simply established the law through precedent.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Well, no, I don't think you have to say that these other cases were wrong, if you mean Watson, because that's dealing... it's different because in Watson you have given them certain constitutional protections such as the right to a first appearance within 24 hours or 48 hours at the most, the right to a probable cause hearing where the burden is on the government to prove probable cause, the right to appointment of counsel if you're an indigent to help you make that decision when you don't have those rights, and any rights that you do have here are merely of a statutory and evanescent nature.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But isn't there a... a public safety rationale behind the... the warrantless arrest which does not apply here?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, there is.</p>
<p>And, in fact, in Watson, they specifically cited an old Massachusetts case, Rohan v. Swain I think, in which they stated that the public safety was implicated in their decision.</p>
<p>That's what they referred to in... in basing it on Watson.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And was there also a factor that a person is mobile and here there was no assertion that this car, as the cars that are under the car exception, might go across the border?</p>
<p>I mean, the car had been there and visible and able to be taken for some period of time.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: There was certainly no assertion and the record doesn't support any idea that the car was going to go anywhere.</p>
<p>I mean, they wouldn't have waited 68 to 80 days if they had thought that the car or the individual was going to be... abscond.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: How long had the car been in the parking lot where it was seized?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: That I don't know, but what I can say...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: It hadn't been there 80 days, had it?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, but it might been there every day...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Nothing in the record indicates it was there for 80 days.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Pardon?</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Nothing in the record indicates it was there for 80 days.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Nothing in the record indicates that the police had it under surveillance for 80 days, does it?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, no.</p>
<p>However, the record does indicate that he was arrested at his... at his place of employment.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And there was no suspicion that at that time the car was carrying contraband.</p>
<p>The crack happened to turn up...</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: No, no.</p>
<p>That was conceded below by the State, and in fact, you can find that in the Florida Supreme Court opinion.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Have we held that you can have an arrest of a person without a warrant for an offense less than a felony?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Not that I know of.</p>
<p>Watson dealt with a felony.</p>
<p>Not that I know of.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So, you... you... you can argue that this is more analogous to a misdemeanor arrest than it is to a felony arrest, the seizing of property that is... that is forfeited.</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Yes, without a warrant.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Do you say that we have not held that a police officer can arrest someone without a warrant for a misdemeanor committed in the presence of the officer?</p>
<!-- david_p_gauldin--><p><b>Mr. Gauldin</b>: Oh, no, no, no.</p>
<p>I wouldn't say that.</p>
<p>No, if that occurred in his presence.</p>
<p>The problem here, of course, is, is th at what occurred occurred 68 to 80 days earlier.</p>
<p>At this point, if there are no further questions, thank you very much.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Thank you, Mr. Gauldin.</p>
<p>Rebuttal of Carolyn M. Snurkowski</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Ms. Snurkowski, you have 4 minutes remaining.</p>
<!-- carolyn_m_snurkowski--><p><b>Mr. Snurkowski</b>: Thank you, Your Honor.</p>
<p>Forfeiture is a process.</p>
<p>It's not just the activity of seizing the car, and the Florida statute is very clear with regard to that.</p>
<p>The seizure of the vehicle commences forfeiture proceedings.</p>
<p>It is not the end all.</p>
<p>So, to suggest that somehow the police are acting beyond the pale and doing something that they shouldn't do because there's going to be monies coming to the agency at some point I believe is not a sound basis to suggest that forfeiture is not a valid basis upon which to be able to seize without a... a warrant.</p>
<p>Watson I believe is very controlling with regard to this instance whether a individual, who has committed a felony and there's probable cause by the police officers to arrest or, in fact, he sees the individual committing a misdemeanor in his presence, I don't believe that there's a dime's worth of difference, to be very frank, between that and the bottom line of seizing a vehicle where the officers understand, believe, and have knowledge and probable cause based on that knowledge, that this vehicle is an instrumentality in a criminal endeavor.</p>
<p>In this particular instance, the police did not just willy-nilly go down to the Sam's parking lot and seize the car.</p>
<p>They had an arrest warrant and they arrested Mr. White on other charges, on other narcotics charges.</p>
<p>And as a part of that, they seized the vehicle because they had the requisite probable cause based on earlier conduct by this defendant.</p>
<p>The State would submit that there's nothing been done during this event, nor any other event, that similarly tracks the ability of the government to go and seize vehicles without a pre-seizure warrant.</p>
<p>In fact, that is done throughout this country on a daily basis based on the Federal forfeiture acts and other State forfeiture acts.</p>
<p>And, in fact, many States and many... in particular, other supreme courts and the Federal Government have relied heavily with regard to the applicability of the Cooper decision, of the applicability of Watson, and of G.M....</p>
<p>And with regard to our G.M. argument, the reason... one of the reasons why I believe that we did not rely so heavily on that was the second prong of this, was that we want to make sure that the... the Court understood that we're not talking about real property.</p>
<p>There was a discussion with regard to the Florida Supreme Court about Florida Department of Law Enforcement versus real property in their opinion, and that case dealt with real property.</p>
<p>We are talking about personal property such as vehicles and other instrumentalities of criminal act, not real property which is an exception under the Florida statutes with regard to forfeiture.</p>
<p>Thank you.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Snurkowski.</p>
<p>The case is submitted.</p>
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Attribution:&nbsp;</div>
The OYEZ Project </div>
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Fri, 09 Jan 2009 14:50:11 +000058507 at http://www.oyez.orgWyoming v. Houghton - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1998/1998_98_184/argument
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Case:&nbsp;</div>
<a href="/cases/1990-1999/1998/1998_98_184">Wyoming v. Houghton</a> </div>
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<div class="filefield-file"><img class="filefield-icon field-icon-audio-mpeg" alt="audio/mpeg icon" src="http://www.oyez.org/sites/default/modules/filefield/icons/audio-x-generic.png" /><a href="http://www.oyez.org/sites/default/files/audio/cases/1998/98-184_19990112-argument.mp3" type="audio/mpeg; length=13295533">98-184_19990112-argument.mp3</a></div> </div>
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Transcript:&nbsp;</div>
<p>Argument of Paul S. Rehurek</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in No. 98-184, Wyoming v. Sandra Houghton.</p>
<p>Mr. Rehurek.</p>
<p>Am I pronouncing your name correctly?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Rehurek, Your Honor.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Rehurek.</p>
<p>Very well.</p>
<p>Would you proceed?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The question presented in this case is whether the scope of a search under the automobile exception extends to the personal belongings of a passenger when police have developed probable cause to search a private vehicle generally, but have no probable cause specific to the passenger or her belongings.</p>
<p>Under United States v. Ross, a search of an automobile based on probable cause extends to every part of the vehicle and its contents that may conceal the object of the search.</p>
<p>The officer here had probable cause to search the entire vehicle and its contents because he had reason to believe that the vehicle was transporting contraband and that it could be concealed anywhere inside the vehicle.</p>
<p>Once probable cause is established to search the entire vehicle, that probable cause extends to every plausible repository of the object of the search.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Am I right that in... in Ross the reason that... the source, if you will, of the probable cause was... was information about... I guess it was the driver of the car, one person anyway?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: That's correct, Your Honor.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So, Ross did not have the issue in it that we have here.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: That's true, neither Ross nor Carroll nor Acevedo nor other cases from this Court on the automobile exception.</p>
<p>The precise question involved here, of course, involves the passenger's personal belongings when there isn't specific probable cause.</p>
<p>However, I feel that Ross still controls the outcome of this case because the rule announced in Ross covers this kind of situation and many, many other kinds of situations.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, Ross was an effort to get... get over, in effect, Sanders and Chadwick and some of those cases that just parsed the thing down to a fare-thee-well, wasn't it?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: It absolutely was, Mr. Chief Justice, and it was also a way to allow officers to know what the extent of their legal authority was.</p>
<p>And in that regard, it was also a way to let citizens know what the extent of their rights were.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: If this passenger, when she was told to exit the vehicle by the police, clutched her bag with her, then is that the dividing line that... could the police, not having suspicion relating to her, but relating to the driver who had the syringe in his pocket... could the police say that was in the vehicle, therefore I can search it?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Justice Ginsburg, there's two responses to that.</p>
<p>First, that item, the purse, is a plausible repository of the contraband that was being searched for here, and it was inside the place where the probable cause attached.</p>
<p>In view of that, I think yes, even if the passenger had picked up her purse and taken it outside with her, the officer would have been within his authority to have her put it back in the car or, alternatively, to tell her not to take... pick it up and take it out of the car...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Could... could he then go on to search the person?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: No, Your Honor.</p>
<p>DiRe teaches us that a search of a person is going to require the individualized probable cause that respondent wants to see attached to the purse.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If DiRe is a given, if it's the law that you can't search the person, then why is that we can search the purse?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Your Honor, I think there's a dividing line here that... that's probably based more on actual practice and common sense than anything else.</p>
<p>But I would argue that a line should be drawn at articles of clothing that are actually being worn by the person getting out of the car.</p>
<p>If there's a search of an item of clothing, that amounts to a search of the person.</p>
<p>However, any other object that might be inside the car when probable cause is established, picked up and taken out of the car, even if it's an item of clothing, ought to be subject to search by the officer because again it's at the place when probable cause is established and it's a plausible repository.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, do you take the position that probable cause extends to every container in the car?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Only, Justice O'Connor, with one qualification, and that is that the container has to be capable of holding the object of the search.</p>
<p>This Court has given an example of illegal aliens in a van does not give authority to police to search their suitcase or a lawn mower in a briefcase type of affair where it's just physically impossible or for other reasons it's absolutely known that the object of the search won't be there.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How... how would your test extend in fixed... a fixed premises, a building, as opposed to a car?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I think the nature of a search of the person is going to be the same either...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Not search of a person.</p>
<p>We're talking about containers...</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Oh, I'm sorry, Your Honor.</p>
<p>Certainly there's a large body of case law that says when a warrant issues to search a premises, that the... the... the officer may execute that warrant by going to every container on the premises that's capable of holding the object of the search.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And if there is no warrant but there's probable cause to believe contraband is present?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: On a premises?</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: He must get a warrant.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I'm having...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And the automobile you say once there's probable cause to believe contraband was present for the driver, that it extends... probable cause extends to allow search of any container that could contain it that's in the car.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I would not personally characterize it that way, Justice O'Connor.</p>
<p>I think the officer always had probable cause to search the entire car in this particular situation.</p>
<p>It's just that it was Mr. Young, the driver, that furnished that probable cause.</p>
<p>It didn't... the probable cause didn't exactly start there with Mr. Young and then emanate outwards through the rest of the car.</p>
<p>Justice Stevens?</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Could I ask you this question?</p>
<p>Because as you pointed out earlier, this is the first time we've gotten into the passenger problem with the Ross/ Acevedo line of cases.</p>
<p>And I was wondering what your view would be of this... this question.</p>
<p>Supposing the officer thought he had probable cause, but in fact the court would later on decide he didn't.</p>
<p>He just... it was an illegal search of a car that was improperly stopped.</p>
<p>Would the passenger in that car have standing to challenge the seizure of something in the front seat.</p>
<p>Say a back-seat passenger.</p>
<p>Could... would the passenger have standing to... to challenge the search, do you think?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, that's a Rakas sort of situation by and large, but if that passenger was not the owner of that property...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: He's not.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Okay.</p>
<p>Rakas tells us that a passenger who is not the owner of the car has no legitimate expectation of privacy in places such as under the seat or in the glove box or, for this example, on the front seat either.</p>
<p>So, without that legitimate expectation of privacy and without knowing more about the situation, I would say probably not, he wouldn't be able to challenge that.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So the... so the... the passenger would not have standing to challenge the search of the entire car, but the right to search the entire car would include a right to search and invade the passenger's privacy interest in her own purse.</p>
<p>It seems kind of having it having heads I win, tails you lose.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, your hypothetical is premised on him actually doing something he had no legal authority to do.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, see, I'm trying to identify what the... how you... how you cabin the various interests in privacy which both determine whether there's a violation on the one hand, and also where there's standing on the other.</p>
<p>It seems to me somewhat inconsistent to say that the privacy interest is insufficient to justify standing and... but nevertheless can be... can be invaded just because you happen to be in the car.</p>
<p>That's the question.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, the reason for the invasion, of course, is... and this won't always be the case, but the reason for the invasion is that the officer had probable cause for the entire vehicle.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But Mr.... do I misunderstand you?</p>
<p>I... surely she would have basis for challenging the search of her purse...</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: if there were no probable cause for the whole car.</p>
<p>Isn't that right?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Certainly.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So, to the extent she has a personal interest involved, she can challenge.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Certainly, certainly.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: In trying to decide how broad... broadly Ross should be read, I'm thinking of... of a possible distinction, and I'd like you to comment on it.</p>
<p>One case in which probable cause would be established generally to search the car would be the case that... that Ross, read in... in its most narrow sense, exemplified.</p>
<p>The driver of the car is exhibiting a certain behavior which indicates that the driver of the car is a drug user and from that it follows to the requisite extent that there... there are probably drugs or paraphernalia in the car.</p>
<p>The second situation in which it would be fair to say that there was probable cause to search the car would be the situation in which a... a witness, whom we will assume to be credible and reliable, goes to the police officer and says, there are three people sitting over in that car and, you know, they're... they're shooting heroin or whatnot.</p>
<p>They're having a high old time on... on drugs over there.</p>
<p>In the second situation, I would suppose there's no question.</p>
<p>The... the probable cause relates to the car and to everybody in it, so that every container in the car, whether it belonged to a driver, passenger, or whatnot, would be subject to the... to the probable cause conclusion.</p>
<p>In the first instance, however, in which it is only the behavior of the driver and the driver alone which furnishes what we speak of as probable cause to search the car, that in fact is... is not so.</p>
<p>Why shouldn't we, in effect, read Ross as... as consistent with that distinction and say that in a case in which probable cause relates to the car and everybody in it, every container, in effect, is... is... is open to search, but when probable cause depends upon the activity of only one person in the car, then although you can generally search the car, you cannot search containers which reasonably appear to belong to somebody else?</p>
<p>Why shouldn't we draw that line?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Because, Justice Souter, you need to take the perspective of the officer involved, first of all.</p>
<p>He has established probable cause that contraband is to be found on the premises, whether it's a car, residence, whatever.</p>
<p>He has established probable cause to believe there's... there's contraband on that premises.</p>
<p>What he doesn't know is that... is where it is.</p>
<p>It can be in more than one place.</p>
<p>Just the fact that there are several people in a car and only one is actually observed using drugs doesn't mean that the others aren't involved.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, that's right, but if that reasoning is going to be carried, I suppose, to its conclusion, then the officer ought to be able to search the persons of the passengers, which DiRe tells us he may not do.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: But I think the Fourth Amendment draws a distinct line on search of the person, and DiRe...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Why?</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I mean, the standard is probable cause whether you're searching a person or searching a... a box.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: The standard isn't just probable cause for the search of a person.</p>
<p>It's probable cause particularized to that person.</p>
<p>Now, here Mr. Young, the driver of the car...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, are you saying that there need be no particularity requirement when you're searching something other than a person?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Yes.</p>
<p>What I'm saying...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What's... what's your authority for that?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, I think Ross says that.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, but Ross... Ross was not... yes, but the question is should... should Ross be read to cover my second situation when, in fact, the facts in Ross go no further than the first situation?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: It's true the facts go no further than that, Justice Souter, but the rule announced in Ross...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Oh, broad language.</p>
<p>No question.</p>
<p>The... but the question... I mean, as I understand it, the question in this case is, is the language to be read as broadly as it was stated?</p>
<p>Is it to be read broadly enough to cover the second situation?</p>
<p>And if... if your answer is, that was the language and I'm going to go on the answer, then I think we still have a question of... of principle to... to wrestle with, and that is whether we really ought to read the... whether we ought to accept the language as being as... as broad as it was.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Your Honor, it's not just the fact that the officer knows a particular individual in that car has drugs.</p>
<p>It's... it's that... that coupled with the fact that contraband could be concealed anywhere inside...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: In the pocket.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That's very true, but exactly.</p>
<p>It... it could be concealed in the pocket just as well as the purse, and if we accept that reasoning, I don't know how DiRe is going to stand except we say, stare decisis, we won't look back.</p>
<p>But as a matter of principle, I don't see how DiRe can stand.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, of course, DiRe really isn't involved in this case, but...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, it will be if we accept your reasoning I think...</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: because there will be an implication, I think, that... that would... would tend to undercut it.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, I'm not trying to say that the search of the person can occur without individualized probable cause, but I am saying that when a container is located in a place where there is generalized probable cause to search, then that container is subject to search unlike a person.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: One of the problems with the line you draw is... is that this particular item, a lady's purse, contains things that many gentlemen carry in their... in their pockets.</p>
<p>So, that's why I raise the... if the... if the lady's purse, why not the gentleman's pocket?</p>
<p>Is that a rational line to draw?</p>
<p>What you're saying is the key is where might one find contraband.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I recognize that situation, Justice Ginsburg.</p>
<p>It seems to me the ultimate criteria, though, under any hypothetical or any scenario is going to have to be whether or not the search of the person occurred.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Are you sure that a search of a purse is not a search of a person?</p>
<p>Suppose a woman is walking down the street.</p>
<p>Is there a difference between the officer grabbing her purse?</p>
<p>He needs less... less probable cause to just grab her purse and look at it than he does to... to conduct a search of her pockets or a frisk search?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I think the search of a purse that's being held by somebody is not the equivalent of a search of the purse in the way the search of perhaps the woman's coat that is being worn at that time would be.</p>
<p>The purse can be picked up and put down.</p>
<p>It can be left.</p>
<p>It can be carried with.</p>
<p>It's not an article of clothing being worn.</p>
<p>I would draw the line, Justice Scalia, at that point regarding the purse.</p>
<p>And again, of course, the officer... officer can't just approach and decide to search the purse because it's not a search of the person and he can get away with it.</p>
<p>He'll need probable cause for that too.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, what are the alternatives for the officer in a situation like this?</p>
<p>Could he order everyone out of the car and, by the way, leave your purse or any other article in the car?</p>
<p>Don't take it with you.</p>
<p>Is that...</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I believe he could...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: authorized...</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I believe he could, Justice...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: for law enforcement officers?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I believe he could, Justice O'Connor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And then what would he have to do if we were not to adopt your view here and he wanted to search the purse and there was no particularized suspicion with regard to this woman's purse?</p>
<p>Get a search warrant?</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Well, the search warrant apparently wouldn't cover it either because under Ross, the scope of the automobile search is going to be the same as the scope of the search pursuant to a warrant, and neither one would cover, if respondent's rule was adopted.</p>
<p>However, in my view it certainly would have been covered by a warrant had a warrant issued, but not because the officer had particularized probable cause to the purse, but because the purse was located in a place where the officer did have probable cause to search and that there was a likelihood that the contraband could have been found anywhere.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I presume then the same reasoning would extend to a wallet in a man's pocket.</p>
<p>And if... if the officer is entitled to... to make the order that... that you say he is in response to Justice O'Connor, I suppose the officer could say, everybody out of the car, leave your purses and wallets on the seat.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Your Honor, I would draw this rather thin but I think distinct line at that point and say pulling an item out of your pocket is going to be a functional equivalent of a search of the person.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: If she had her purse in her pocket, it would be a different question.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: I believe it would.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But not if she was just holding the handle of the purse.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: That's correct.</p>
<p>It's a very thin line.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: It is a little thin.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: If I may, I'd like to reserve the balance of my time for rebuttal.</p>
<p>Argument of Barbara B. McDowell</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. Rehurek.</p>
<p>Ms. McDowell, we'll hear from you.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>In United States v. Ross, the Court articulated a clear, logical, and easily applied rule that probable cause to search a car gives the police the authority to search any container in the car that might contain the object of the search.</p>
<p>The container should not be exempt from that rule simply because it's owned by a passenger whom the police do not have probable cause to arrest.</p>
<p>In many such cases, like this one, a police officer still could reasonably conclude that the object of the search may be found in the passenger's purse or other container.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: We're probing why this rule doesn't extend to the search of a passenger in the car.</p>
<p>It would seem to me almost easier for the driver to say, here, quick, take the drugs, to the passenger than to stop and put it in the passenger's purse.</p>
<p>Why can't we search the passenger too?</p>
<p>Let's say DiRe is not on the books.</p>
<p>Certainly under your... the logic of your position, it would clearly extend to the passenger.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Certainly the logic of our position would tend to extend to a search of the passenger as well.</p>
<p>There might be...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Is DiRe wrong then?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Pardon me?</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Is DiRe wrong then?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: We would conclude that the rationale of DiRe may be incorrect to the extent that it suggests that there's no probable cause to believe that there's contraband on the passenger.</p>
<p>However, there would be another rationale to preserve DiRe but to allow the search here, and that would be to recognize that a search of the person is more intrusive for Fourth Amendment purposes than a search merely of someone's belongings.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But the standard to justify than search is the same whether we're talking about a search of the person or... or a search of a receptacle.</p>
<p>I mean, it's still the probable cause standard.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: That's correct, but the Fourth Amendment also incorporates the concept of what is a reasonable search and one might be able to say that what's reasonable in the context of property is not reasonable in the context of a personal search.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So, probable cause... to search the person, you're saying perhaps we would have to say there would be probable... required probable cause plus something more.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Perhaps one could say that there needs to be somewhat more individualized suspicion directed at the person in order to conduct a personal search.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I'm not sure why that is.</p>
<p>I'd much prefer that a police officer search my pockets than my briefcase.</p>
<p>Maybe that's just idiosyncratic with me, but I...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Perhaps.</p>
<p>Also, we have raised the possibility that in many circumstances, a driver of the car who is clearly involved in illegal activity would have an opportunity to store contraband in an innocent's passenger's purse.</p>
<p>It seems somewhat less likely that a guilty party could reach into the pocket of a purely innocent party and... and, totally unawares, deposit contraband there.</p>
<p>It's somewhat easier to conceive of that happening with respect to a purse or other container that's not on the person.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What is the basic rule?</p>
<p>I find it hard to keep all these complicated rules in mind, so I think maybe the police may also find it difficult and others.</p>
<p>But... but suppose you have really probable cause, not some artificial rule, that you really have probable cause to think that there's a pound of heroin in a car.</p>
<p>Let's say the police saw the pound of heroin and they tested it.</p>
<p>Somebody put it in a car and there it was.</p>
<p>The car has been moving.</p>
<p>There's been no chance.</p>
<p>They've been watching it the whole time.</p>
<p>There's no chance it could have been disposed of.</p>
<p>Now, they stop the car.</p>
<p>They know it's in the car.</p>
<p>It's not on the driver.</p>
<p>There is one passenger.</p>
<p>Can you search the passenger, including his billfold?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: No.</p>
<p>We would say that you cannot...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: You cannot?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: search the person under DiRe.</p>
<p>Whether you can search the passenger's belongings or not...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Even if you really have probable cause.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Pardon me?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Even if you really have probable cause to believe that there is a pound of heroin in the passenger's pocket because there's nowhere else it could possibly be and you know it's there.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Oh, if you believe...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Even under those circumstances, you cannot search the passenger?</p>
<p>That's the law?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: I'm sorry.</p>
<p>I didn't understand your question.</p>
<p>You believe that it's in the passenger's pocket?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Look, I'm saying you know for sure there's heroin in the car.</p>
<p>You know it for sure.</p>
<p>You know for sure it's not on the driver.</p>
<p>There's only one place it could be: the passenger</p>
<p>Can you search the passenger?</p>
<p>He'd have a bulge in his pocket.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: He has a bulge.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Exactly.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: He has a bulge and you sniff it.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It's there.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Yes.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: All right?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: In that circumstance, you would have individualized probable cause presumably.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I don't know what this means, individualized.</p>
<p>I mean, you have probable cause to believe it's in the car.</p>
<p>You can't find it anywhere.</p>
<p>There's only one place left: the passenger</p>
<p>Can you search the passenger?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: The model code of pre-arraignment procedure adopted by the American Law Institute would suggest that you can.</p>
<p>That code adopts the rule that once you have searched everywhere else in the car and you have reason to suspect that it may be on a passenger's person...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: In that hypothetical, you could arrest him.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: you can search them.</p>
<p>The model code recognizes that that position is somewhat inconsistent with DiRe, however.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why is it inconsistent with DiRe?</p>
<p>I mean, in... in Justice Breyer's example, at the point the police would conduct the search of the passenger's pocket, all the... all the facts known to them establish the probability, in quite a literal sense, that the heroin is in the passenger's pocket.</p>
<p>Why isn't that a simple garden variety example of having probable cause that points directly to a given person and nothing more than that?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Well, there... there certainly is a lot of logic to that position.</p>
<p>There are not cases...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Which is good for starters.</p>
<p>I mean, why isn't the...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Why doesn't the logic... why doesn't logic win here?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Of course, the... the... the next question is what if... what if you just have probable cause to believe that there is... that there's contraband in the car?</p>
<p>Yes.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Thank you.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You're not certain there's contraband in the car and you search everywhere else and... and you don't find it.</p>
<p>And then there's the passenger left.</p>
<p>Now, is probable cause plus probable cause enough?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's... that's what's confusing me, of course.</p>
<p>I didn't know there's more of a standard than probable cause.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, the thing that puzzles me, why don't you just arrest him in that hypothetical?</p>
<p>You have probable cause to arrest if you've got probable cause to believe he's got heroin in his pocket.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: They may not always be the same concept.</p>
<p>In this case that might be true and then you can conduct a... a search incident to arrest.</p>
<p>We're not aware of circumstances where the automobile exception allowing a warrantless search of a car has been extended to persons in the car.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yes, but you have an exigent circumstances exception, don't you?</p>
<p>If you don't... well, you can do one of two things I suppose, and... and either of two rules would cover it.</p>
<p>You can either arrest, as Justice Stevens says, in which case you can then conduct a search incident to an arrest, or if you don't arrest, I suppose the exigent circumstances exception would apply.</p>
<p>I mean, you're... you're... one or the other is going to apply, isn't it?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Probably so, yes, Your Honor, depending on the degree to which one has suspicion focused on the individual at the point that you conduct the arrest or the search.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do we have to decide all this stuff today?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: No, Your Honor.</p>
<p>The question here is a relatively simple one involving a... a purse that was left in the car when the passengers got out.</p>
<p>So, there are possibly difficult line-drawing problems involving searches of persons or purses attached to persons that would not need to be reached in this case.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, would you say that... the same question I... I asked the first counsel.</p>
<p>If she left the car clutching the bag, would you treat that any differently than if it's a container in the car?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: No, we wouldn't, just as when the police are executing a search of a residence, somebody couldn't walk out with a box containing the contraband and be allowed to walk away free.</p>
<p>We would say that because the purse was in the car at the time that probable cause arose...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What is your answer to the warrant to search a house and a woman is in the house with her purse.</p>
<p>She doesn't live there.</p>
<p>She's just a guest.</p>
<p>Can you search her purse then?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: You can.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Has any court held that?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Yes, the D.C. Circuit, among others, Pennsylvania, Michigan, and Wisconsin Supreme Courts have reasonably...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Are there any contrary holdings?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Other courts have adopted a somewhat different standard that looks at the relationship between the owner of the purse and the residence.</p>
<p>They have said that a mere guest or passer-by's objects cannot be searched, but they have said somebody in the nature of an overnight guest, somebody who is found there late at night, a business associate, a brother-in-law, yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And did they more or less correlate it to the kind of person who would have standing to object to the... the search of the whole house, the overnight guest on the one hand and a transient on the other?</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: No, that distinction hasn't been drawn.</p>
<p>So, conceivably a person who would not have standing to challenge the search of the whole house could nonetheless have her own property searched.</p>
<p>Obviously, she would have standing with respect to her own purse.</p>
<p>We further suggest that the test that was suggested by the Wyoming Supreme Court would be very difficult for the police to apply in the often difficult, even dangerous conditions of a traffic stop.</p>
<p>It would require many factual inquiries that might be exceedingly unworkable to conduct.</p>
<p>In addition, that test provides no really principled protection of a passenger's privacy.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Why is it so hard to apply?</p>
<p>Because, at least as I read the decision, it says when they find out, they say, is this your purse?</p>
<p>She says, yes.</p>
<p>She's a passenger they stopped.</p>
<p>I don't see why it's hard to apply.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Well, for one thing, Justice Ginsburg, the police shouldn't have to accept a person's word that a particular purse is hers.</p>
<p>A person who would want to conceal...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, when they... let's... I don't... the... as I understood the Wyoming Supreme Court, they said they... the police found what was it?</p>
<p>Her driver's license.</p>
<p>So, they know that it's her purse.</p>
<p>So, if... if that's the line, they know that it belongs to the passenger, that's not a hard line to administer.</p>
<p>There may be other reasons to reject it.</p>
<!-- barbara_b_mcdowell--><p><b>Mr. McDowell</b>: Could I answer the question, Your Honor?</p>
<p>There are additional inquiries that would have to be conducted, inquiries as to exactly how much particularized suspicion there is as to the passenger, questions about whether an opportunity existed to hide contraband in the passenger's purse immediately before the stop, which the Wyoming Supreme Court would allow.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Thank you, Ms. McDowell.</p>
<p>Argument of Donna D. Domonkos</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Ms. Domonkos.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Mr. Chief Justice, may it please the Court:</p>
<p>Wherever a man may be, he is entitled to know he will be free from unreasonable searches and seizures.</p>
<p>That is the language from Katz v. the United States where this Court said the Fourth Amendment protects people not places.</p>
<p>This Court has also said that it is the owner of the container who is protected under the Fourth Amendment.</p>
<p>The Wyoming Supreme Court recognized these rulings when it adopted the notice test.</p>
<p>In the first instance of the notice test, if the officer knows or reasonably knows that the container to be searched does not belong to the person whom they have probable cause to search, they cannot search it.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, Ms. Domonkos, the Wyoming Supreme Court certainly did not follow the language in Ross here, did it, in our Ross decision?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: It did follow the language in Ross.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I... I thought Ross said probable cause extends to any container in the car.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: The... the scope of the Ross holding was that...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I didn't say...</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: The scope of the search.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Yes, go... go ahead.</p>
<p>Go ahead.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: The scope of the search is that where... wherever the officer has probable cause to believe that contraband may be concealed.</p>
<p>And there was no reason to believe the officer in this case had probable cause...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but didn't it say... it extended to any container in the automobile?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes.</p>
<p>Ross introduced a bright line rule.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And the reason it introduced a bright line rule was because lawyers and courts have been hopelessly confused by some of our earlier decisions which parsed this thing to a fare-thee-well: Chadwick, about whether the trunk was in the car and who saw it when; Sanders, the same thing</p>
<p>Ross straightened out a lot of those things, and I'm concerned if we follow the Wyoming Supreme Court, we're just going to get right back into that same case-by-case thing where people never knew what the answer was.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Ross... the bright line rule in Ross was... was that all containers could be searched.</p>
<p>The Wyoming Supreme Court notice test still carries the presumption that all containers within a vehicle where there's probable cause to believe contraband may be concealed can be searched, unless they know or have reason to know that the container they want to search belongs to someone they do not have probable cause to search.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Unless the suspect had immediate access to that object before the search.</p>
<p>Isn't that another exception?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That's another exception...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, so that it's not as straightforward even as you've just stated it.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: But it's still in compliance with this Court's holdings.</p>
<p>In Zurcher v. Stanford Daily, they said that if the cop... or the officer has reason to believe that evidence is concealed, they may still search a third party.</p>
<p>So, once again it's in compliance with this Court's precedent that there has to be some kind of probable cause, some reason to believe that this container contains evidence.</p>
<p>In this case, the officer was searching for evidence of Mr. David Young's drug usage.</p>
<p>There was no indication that that drug usage evidence was going to be in Sandra Houghton's purse.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Would the case have come out differently if the prosecutor hadn't made a point of saying, now, we kept our eye on that car and we... we know that there was no opportunity to just slip this into her purse, so she's responsible?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, it's possible the outcome would have been different, but since we have evidence in this case that says, from the officer who testified, that the car was under surveillance the entire time and there was no chance for David Young to slip any evidence into Sandra Houghton's purse, there was no reason to believe that his possession crime would be... evidence of this crime would be in her purse.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That isn't actually what they said.</p>
<p>I thought that the... what they said on the facts is that after the officer shined the lights, nobody slipped anything into the purse.</p>
<p>But they had been driving together for we know... we don't know how long.</p>
<p>I mean, that's what I don't understand about this case.</p>
<p>Why isn't there probable cause to believe it was in the purse?</p>
<p>You have a person with a syringe in his pocket.</p>
<p>He says he's a drug user.</p>
<p>He's driving along.</p>
<p>If you think he has drugs, why wouldn't you think there would be drugs in the car?</p>
<p>And an obvious place to put them would be in a purse.</p>
<p>If you were a drug user, you don't have people driving in the car when your syringe is exposed unless you trust them.</p>
<p>I mean, why doesn't that at least give probable cause to search the purse, if that makes a difference?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: This Court has already rejected a similar argument in Sibron v. New York where they said that the mere association with a drug addict... and this was a person... or a case where the person was associating with these drug addicts for approximately 8 hours throughout a day.</p>
<p>And this Court said that was not enough to presume that this person was also involved with drugs.</p>
<p>The fact that Sandra Houghton was in this vehicle with someone that is possibly a known drug addict cannot rise to that level of probable cause unless the officer sees something.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Didn't she give a false name to the officers?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, she did, but the officer didn't know this until he did breach...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Doesn't... doesn't that suggest that the idea of identifying who's who in a car is... is not going to be all that straightforward?</p>
<p>I mean, to say... you know, she says it's her purse.</p>
<p>Well, if she... if she can give a false name, she can probably make a false statement that it's her purse too.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, she could make a false statement, but in this case we have an officer who made the determination.</p>
<p>He made the determination that he had probable cause to search the vehicle because of probable cause on David Young.</p>
<p>He also said that he knew the purse did not belong to David Young and that he did not have probable cause on Sandra Houghton...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Suppose he did.</p>
<p>Would that... would you then lose or not?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: I'm sorry.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Suppose after reading Sorrano and so forth, I thought, well, to me anyway, he does have probable cause to search the purse.</p>
<p>It makes a lot of sense.</p>
<p>Suppose I thought that.</p>
<p>I'm just saying this hypothetically.</p>
<p>Then you lose or not?</p>
<p>I'm not sure.</p>
<p>I'm asking because I'm not sure.</p>
<p>If he had probable cause to search the purse, what's the right analysis?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, if he had probable cause to search the purse, then...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Then that's it.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Then he had probable cause to search the purse and the actions of the officer would have been in compliance with this Court's...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But if... if he had probable cause to search her, he couldn't do it, according to the Government.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: No, I believe if he had probable cause to search her, he would have had probable cause to search her purse, all effects.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But he couldn't have searched her without arresting her or something?</p>
<p>Forget it.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Forget it.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: As... as I understand your... I think I'm right about this.</p>
<p>Suppose in the back seat the officer sees a tote bag, a gym bag, a man's lunch box, a brown paper sack, a Gucci bag, and a purse.</p>
<p>As I understand it, your position is he can search everything but the purse.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, Your Honor, if the facts are the same as in this case where you have a male driver, two female passengers, and there's no reason to believe that he has secreted something within the purse because the indication there at that point is that the purse does not belong to David Young.</p>
<p>It would be the same as if there is a briefcase...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And, of course, if that's the rule that we make, then probably the best place for this man to put it would be in the purse.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: It is possible that that is the way that he could have done it, but there would have to be some reason to believe that he did before this... before he would be allowed to...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: It's unlikely that a man who is driving around with a syringe sticking out of his pocket is going to be conscious of hiding things.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes.</p>
<p>I'm not sure I understand the... if there was a question.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: The question was maybe he transferred it before the lights were on the vehicle.</p>
<p>At least in this scenario, this was a terribly careless man.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes.</p>
<p>But once again, if he had transferred something before the officer had shined the light or before he started observing, then he would have no reason to believe that the evidence had been secreted within this purse.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Suppose I wanted the simplest rule on the ground that this a borderline case.</p>
<p>It is borderline I think and it's quite complex.</p>
<p>What's the simplest rule?</p>
<p>I mean, what they're arguing is that a container is a container.</p>
<p>That's the end of it.</p>
<p>That's simple.</p>
<p>Now, what would you say?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: The... the rule would be that where there is only one person within a vehicle, if you have probable cause to search the vehicle, you may search all containers within the vehicle.</p>
<p>If there is a passenger present and you know the item you want to search belongs to the passenger, then you cannot search unless you have probable cause to search the passenger.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That would go for trunks, large cardboard boxes, valises, chicken coups, whatever the... the passenger says, oh, this all belongs to me.</p>
<p>He says, well, this is all mine.</p>
<p>It's not the driver's, and then that's it.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You can't search it.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, because there would be no probable cause, and this Court has required probable cause.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, are you saying that the passenger's say-so is enough?</p>
<p>I mean, the reason this purse was identified was that there was an ID card with her name and her picture on it.</p>
<p>So, as I understood the Wyoming Supreme Court, it's not enough that the passenger says, yes, that gym bag is mine or whatever.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: There has to be objective criteria that indicates that it belongs to the passenger.</p>
<p>In this case, the officer said he didn't believe it belonged to David Young because he was male and this was a purse, and so it would belong to one of the passengers who were female.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So, the presumption is that a container in the car belongs to the driver unless there is affirmative evidence to show the contrary.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That would be your rule.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That's correct.</p>
<p>And that evidence can come in many ways: initials on a briefcase, so if you have someone asserting ownership over the briefcase, and the initials on the briefcase do not</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, that... that kind of discriminates in favor of rich people in a way, doesn't it?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: If you can afford to have initials put on your briefcase, you can avoid search, but if you just have a... something that doesn't have your initials on it, you can't?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: I'm just saying there's objective criteria to look for and that could be one of them.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Even I have initials on my briefcase, Mr. Chief Justice.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But the... the... the statement of the passenger that this belongs to me would not be sufficient?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: In most instances, not.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, what instances would it be?</p>
<p>You say in most instances it wouldn't be.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: In instances like in this case where we have the belief of the officer that it did not belong to the driver.</p>
<p>He had some criteria that he looked at and he said it did not belong to the driver.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, if you've got a male driver and two female passengers, I suppose you'd think the purse didn't belong to the driver.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That's correct.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: And so that, with claiming ownership from Sandra Houghton, is enough to... to say, okay, this item does not belong to the driver.</p>
<p>It belongs to the passenger.</p>
<p>Now you must have probable cause to search the passenger before... you have to have the probable cause before the search can commence.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: The... suppose this police officer, instead of just saying, is this your purse, he said, is this your purse?</p>
<p>She says, yes.</p>
<p>He says, mind if I search it?</p>
<p>That's a familiar scenario.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, it is.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And... and the answer is often yes.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: And if there is a yes answer that he can search it, then he has consent to search, and there would be no... no problem with the validity of the search.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: She left the bag too.</p>
<p>I mean, most... most people, when they have a bag... I think a woman who has a bag normally just takes it with her, and she left it in the car.</p>
<p>So, the officer is thinking, look, here he has a syringe hanging out, he says he's a drug user, she's been driving with him I don't know how long, there's a bag right in the back seat, and she leaves it in the car.</p>
<p>Now, does that amount to probable cause to search the bag?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: No, Your Honor, and the reason for that is because there's no indication that this was a voluntary leaving the bag in the car.</p>
<p>We also don't want to encourage them to be grabbing for these kind of items while they're getting out of the car because then that's going to pose a... a safety problem for the officer.</p>
<p>And so, it is... like I said... and the record does not disclose that this was an actual voluntary leaving of the... the bag within there.</p>
<p>She was ordered out of the car.</p>
<p>The State's argument and what they are asking this Court to do is to carve out an exception to the probable cause requirement that this Court has held is always necessary before a search can happen, whether it be under the automobile exception where all that has been... all that has changed with the automobile exception...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, I had thought it was a fairly straightforward application of Ross, but you don't agree with that.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: No, I do agree with that.</p>
<p>I do agree that because there's probable cause required before the officer may search, this is the application of Ross.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but I think it's you who are wanting to carve... carve out the exception from the language of Ross which says that any container in the car can be searched when there's probable cause.</p>
<p>You're saying no in the case... case of a passenger.</p>
<p>So, I think the exception carving is the Wyoming Supreme Court and not your opponent.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Your Honor, I would disagree because of the fact that just like you said with the Ross holding, probable cause is required, and in this holding, the Wyoming Supreme Court said there was no probable cause to believe the evidence was going to be found in her personal effects.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but that's the inquiry that was superseded under Ross.</p>
<p>I mean, you no longer had to make that sort of an inquiry.</p>
<p>When there was probable cause to search the car, you could search any container in the car.</p>
<p>And then so, what the Wyoming Supreme Court here said is, no, that's not... that's not quite true when you have a passenger.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Ross did not have any passengers, so we really... we don't really know what would have happened had Ross had a passenger, but the fact remains that Ross requires probable cause to search.</p>
<p>And also, Ross also identified the fact that it's the owner of the container who is protected, and the owner of this container was Sandra Houghton.</p>
<p>She is the one protected by the Fourth Amendment, and that protection is that unless there's probable cause, the search is unreasonable.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: One of the problems with the Ross opinion is it also said the search of the car should be coextensive with the search that would be authorized if they had a warrant with probable cause.</p>
<p>But the problem is I don't think the Court has ever decided whether even if you had a warrant for a house or whatever it is, you could search an individual's purse who happens to be within the place described in the warrant.</p>
<p>I think that's an open question, and that's why Ross doesn't completely answer it.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That is correct.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: And we have to take a look at what would have happened if this officer had sought a warrant.</p>
<p>I believe David Young possesses drugs because he had a syringe and he admits to taking drugs.</p>
<p>I also know that in this vehicle was a passenger, Sandra Houghton, and she has a purse.</p>
<p>I have no reason to believe he hid this... any evidence of his drug usage in her purse, and I have no probable cause to believe she is involved with any illegal activity.</p>
<p>Would a warrant be issued in that circumstance?</p>
<p>And I don't believe it would be.</p>
<p>And so, under Ross...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, the question isn't whether the warrant would be issued.</p>
<p>The question is whether... if the warrant is issued describing the car, whether that warrant would authorize the search of a particular person who happens to be in the car, a person's purse, or whatever it is.</p>
<p>And the same question with... for a house.</p>
<p>And part of the problem is we've never decided it.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: And that... that is true.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: I guess we can look to Ybarra, which is the same thing that the Wyoming Supreme Court did, and they said, here is a warrant that was issued, but there was no reason to believe that Ybarra was involved with criminal activity.</p>
<p>And so, the warrant would not extend...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But that... that was... that was a search of a person, was it not?</p>
<p>Ybarra?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, it was a search of a person.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And it was... it had nothing to do with an automobile.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: No, it did not.</p>
<p>No, it did not.</p>
<p>It's just looking at the analogy of what a warrant that was issued would allow, and in Ybarra, it would not allow this search because the officer didn't have any reason to believe... no probable cause to believe this person was involved with criminal activity.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Of course, the bright... bright line rule in Ross didn't... didn't really last all that long because it was changed in Acevedo.</p>
<p>There was a dramatic change in the rule in that case.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes.</p>
<p>In that case we then had the probable cause just on the container that was in place within... in the vehicle.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Why isn't that true here... the purse?</p>
<p>I mean, it's... I can't get over the fact it's... perhaps it's just my own odd way of looking at the world, but... that it would be an obvious thing for a drug addict driver to put the drugs in this purse which is right next to him or nearby.</p>
<p>Now, you're saying there's no way in that situation that the law permits a search of the purse.</p>
<p>I'm not saying Ms. Houghton was involved, but it just seems logical that he could have put it there.</p>
<p>So, don't we have probable cause for the purse, though not necessarily for the person?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: And that is the second part of the notice test.</p>
<p>If you have reason to believe that the evidence has been secreted within this purse, you can search it.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And is it not... but... I see.</p>
<p>All right, we're back...</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: I'm sorry.</p>
<p>I didn't mean to interrupt.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Why was there not reason to believe that it might have been secreted in the purse?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: The officer said he kept the vehicle under surveillance from the time that he observed the speeding and the taillight.</p>
<p>He kept it under observance from that time period till he stopped.</p>
<p>Once he stopped, he placed the light on the interior of the vehicle and he said he saw no movement.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but would he necessarily see a movement while he was following the thing?</p>
<p>I mean, it doesn't take much to simply hand something from the front seat to the back seat.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: He testified he saw no movement.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But what about putting it there before he saw?</p>
<p>I mean, we're back in circles, but your answer to that was simply there's a Supreme Court case that says it isn't probable cause.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Right?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Just that he associated with drug addicts, and that's all that you would have at that point.</p>
<p>And any time prior to his observance...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: This just doesn't quite conform to common sense in... in my view.</p>
<p>I think that's what Justice Breyer was saying.</p>
<p>You know, this... going... if I may be forgiven the expression, going around Robin Hood's barn to figure out what was going on when it seems perfectly common sense to say this guy was spotted for a... for an offense.</p>
<p>He was being followed by the police.</p>
<p>He had a syringe in his pocket.</p>
<p>If he was going to put his drugs somewhere, he's going to put them in some container in the car.</p>
<p>What's wrong with that just as a matter of common sense?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's where I started.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, what's wrong is that they didn't find him guilty of possessing drugs.</p>
<p>He had an empty syringe.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So, he didn't have any drugs.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: The other thing too is that we have no indication that Sandra Houghton did know about the syringe.</p>
<p>The officer who approached his vehicle had a better vantage point to see within the pocket of the driver.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but couldn't he have grabbed her purse perhaps without her knowledge?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: It is possible that it could have happened, yes.</p>
<p>But the officer did not have any reason to believe that happened.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, why did he need to have a... any more reason to believe?</p>
<p>The guy had a syringe.</p>
<p>Presumably he had drugs somewhere, and there were containers in the car.</p>
<p>Why didn't that give him probable cause to search the containers?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Absent any actual knowledge that this happened, it is just a presumption that it could have happened, and since the owner is the one that is protected, we have to look at how we are going to protect Sandra Houghton.</p>
<p>And there was no probable cause to search her and there was no...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: She turned out... there were drugs in her purse, were there not?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That is correct.</p>
<p>That is correct.</p>
<p>There were.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But they were her drugs not his, weren't they?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But I mean, they're not... there's no indication they were placed in the purse by the driver.</p>
<p>They just... she happened to have drugs, and it's just that, you know, they just stumbled on this really.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: In fact, she probably planted the pipe on him.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Always possible, yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Is that... is that the case?</p>
<p>I hadn't taken that in, that they... they weren't his drugs?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: She actually disclaimed ownership of...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: She said they weren't mine.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, of some of the drugs that were within her purse, but she did claim ownership of some.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes, but the jury didn't believe that.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: She also gave a false name.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: Yes, she did.</p>
<p>Yes, she did.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: The driver and the other passenger were clean as far as the police were concerned.</p>
<p>She was the only one prosecuted.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is that...</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That is correct.</p>
<p>That is correct.</p>
<p>They let Mr. Young and the other passenger go that evening and they did not place him under arrest or the other passenger.</p>
<p>She was the only one placed under arrest that evening.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Did they search her purse?</p>
<p>And actually the other passenger was in the middle, wasn't she?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That is correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And... and she... her... was her purse searched too?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: I'm not aware it if it was or whether she even had a purse.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: The record doesn't tell us because you would think if he was going to put them on... in the purse, he'd put them in the woman next to him rather than the one over by the door.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That is correct.</p>
<p>That is correct.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What happened in respect... there was something in... there's some reference to her trying to give the impression it wasn't her purse, isn't there?</p>
<p>What was that about?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: No.</p>
<p>There were three wallet type containers within the purse, and those were where the contraband was found.</p>
<p>Now, the first one that was pulled out, she said that is not mine, and then another one was pulled out and she said that one is mine.</p>
<p>So, she did claim ownership even of the contraband that was pulled out of the purse, but she disclaimed ownership of part of the contraband that was pulled out of the purse.</p>
<p>The Fourth Amendment requires probable cause, and in this case there was no probable cause to search the passenger.</p>
<p>The Wyoming Supreme Court ruling is consistent with this Court's holdings in Ross and Acevedo which require probable cause before a container can be searched.</p>
<p>The State is asking this Court to carve out an exception to the probable cause requirement and say, your mere presence in a vehicle is enough to search your personal effects as long as there's probable cause for the vehicle generally.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Can I ask you one other detail?</p>
<p>I'm sorry.</p>
<p>On the fact are we objecting... are you objecting to the search of the purse or the wallet in the purse?</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: We are objecting to the search of the... of the purse.</p>
<p>It would also be an objection to searching anything within the purse as well.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But only from the point when they knew that it was hers and not Young's.</p>
<!-- donna_d_domonkos--><p><b>Mr. Domonkos</b>: That is correct.</p>
<p>Without probable cause, this... this search should never have happened, and we're asking this Court to affirm the ruling of the Wyoming Supreme Court when they adopted the notice test that required probable cause before a passenger could be searched or, in the alternative, if they have reason to believe that a container is still concealing the contraband, that they can search it.</p>
<p>Both of these ideologies are consistent with this Court's rulings.</p>
<p>Thank you.</p>
<p>Rebuttal of Paul S. Rehurek</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mrs. Domonkos.</p>
<p>Mr. Rehurek, you have a minute remaining.</p>
<!-- paul_s_rehurek--><p><b>Mr. Rehurek</b>: Thank you, Your Honor.</p>
<p>I would just ask the Court, unless it has questions, to envision a group of officers in the middle of the night in Wyoming standing around for 60 minutes, as just happened here, trying to figure out whether they can search the purse in the back of the car and ask that this Court overrule the Wyoming Supreme Court and apply Ross to this situation.</p>
<p>Thank you.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Rehurek.</p>
<p>The case is submitted.</p>
<p>The honorable court is now adjourned until tomorrow at ten o'clock.</p>
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Attribution:&nbsp;</div>
The Oyez Project </div>
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Featured:&nbsp;</div>
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Fri, 09 Jan 2009 14:50:10 +000058491 at http://www.oyez.orgKnowles v. Iowa - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1998/1998_97_7597/argument
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Case:&nbsp;</div>
<a href="/cases/1990-1999/1998/1998_97_7597">Knowles v. Iowa</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Paul Rosenberg</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in No. 97-7597, Patrick Knowles v. Iowa.</p>
<p>Mr. Rosenberg.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>By statute in Iowa, police are authorized to search any motor vehicle in which the driver receives a traffic citation.</p>
<p>The question presented here is whether Iowa's search incident citation statute shall be adopted by this Court as a new category of per se reasonable searches.</p>
<p>It was in March of 19...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I'm not sure that's what the statute does.</p>
<p>The statute says, I believe, the issuance of a citation in lieu of arrest or in lieu of continued custody does not affect the officer's authority to conduct an otherwise lawful search.</p>
<p>So, I took it that the issue was whether this was a lawful search, not whether the statute said there can be a full-blown search.</p>
<p>I thought it left it to the subsequent determination of whether the search was lawful.</p>
<p>Now, in this case, the Iowa court said that a full search was lawful but, in the course of that, seemed to rely, at least in part, on Federal law under the Fourth Amendment.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Well, the Iowa Supreme Court has construed this language that says otherwise lawful search to extend the search incident to... excuse me... search incident to arrest exception to encompass those circumstances where a citation is issued and there is in fact...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, I thought what the court below did was to say that a full search on the occasion of a traffic citation was lawful in their view.</p>
<p>Isn't that what happened?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes.</p>
<p>Yes, they did say that.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Yes.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: It isn't that the statute requires that result.</p>
<p>They said that kind of a search is lawful.</p>
<p>So, I guess what we have to decide is whether under the Federal Constitution that's correct.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: That's correct, Your Honor.</p>
<p>In March of 1996, Mr. Knowles was pulled over for speeding in Newton, Iowa.</p>
<p>In all respects, this was a routine traffic encounter.</p>
<p>Mr. Knowles was obedient to the single deterrent to pull over.</p>
<p>He produced a valid driver's license.</p>
<p>A computer check revealed that there were no warrants for his arrest, and the police officer testified that he had no suspicion...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Rosenberg, could you just back up for a minute because in your answer to Justice O'Connor, you said something that I didn't understand you had challenged.</p>
<p>That is, I didn't understand that you had contested the authority to make a full custodial arrest for speeding.</p>
<p>You had only contested that if they don't and they merely give him a citation, then they can't search.</p>
<p>But I hadn't realized that you had raised the question that Justice Stewart left over in the Gustafson case, which was whether you could have constitutionally a full arrest for a traffic violation.</p>
<p>Where did you raise that question?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: We didn't raise the question of lawfulness of the arrest.</p>
<p>We're only questioning the lawfulness of the subsequent search.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, then your answer to Justice O'Connor was not right because she asked you if you were contesting the authority to make a full custodial arrest on the basis of a traffic violation, and you said you were.</p>
<p>But I understood that you were not, that you were making a more limited challenge, that is, if... assuming they could make a full custodial arrest, they didn't.</p>
<p>All they did was issue a citation.</p>
<p>Having done just a citation, they cannot engage in... in a full search.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: If I answered that way to Justice O'Connor's question, then I misspoke.</p>
<p>The statute says otherwise lawful search.</p>
<p>The Iowa Supreme Court held that the search was lawful.</p>
<p>At no stage in the proceeding from the district court to the Iowa Supreme Court to this Court have we contested the validity of the arrest... excuse me... the stop in this case or the authority to arrest in the circumstances of a traffic citation.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Arrest and make a full custodial... make a full search.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes, under...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So, all that we're talking about is if they don't exercise that authority, authority you're not challenging, and merely issue a citation, can they nonetheless go ahead.</p>
<p>So, that's what we're talking about.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: That's correct, Your Honor.</p>
<p>The officer testified that he had no suspicion that Mr. Knowles was carrying contraband or a weapon or that he had such items concealed on his person or in his car.</p>
<p>At this point, being satisfied, he issued the citation to Mr. Knowles, handed it to him, and Mr. Knowles signed it.</p>
<p>At this point, the officer radioed for backup and searched Mr. Knowles' person and his automobile.</p>
<p>He found a small quantity of marijuana and what the officer called a pot pipe.</p>
<p>At the suppression hearing, the officer testified that he had no justification and no search... excuse me... no consent to conduct a search.</p>
<p>He was relying entirely on Iowa's search incident to citation law.</p>
<p>The Supreme Court, in deciding Mr. Knowles' appeal, essentially held that the search incident to arrest doctrine, which in United States v. Robinson was held to be a per se reasonable search, that this doctrine was going to be extended by the State of Iowa by virtue of the statute to situations in which a citation was issued.</p>
<p>The fundamental premise of the Iowa Supreme Court's decision was that the search incident to arrest doctrine does not require a custodial arrest.</p>
<p>It merely requires grounds for arrest or cause for arrest.</p>
<p>This premise is incorrect.</p>
<p>The search incident to arrest doctrine has historical legitimacy.</p>
<p>It existed at the common law in this country and in England, and it was always thought to involve search incident to arrest as a necessary and, it was assumed, reasonable search.</p>
<p>There was no comparable historical roots or historical legitimacy for a search incident to a citation or a search incident to any other means by which a criminal prosecution would be commenced outside of an arrest.</p>
<p>Also, in...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Do you think it's... it's clear that a stop or a traffic offense committed in the officer's presence is not an arrest?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: The actual...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is that clear?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: The actual stop would not be an arrest.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is the person free to leave?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: No.</p>
<p>That would be a... a... a seizure, a brief detention, and this Court has held that it's a seizure.</p>
<p>But in order to effectuate an arrest, the officer would have to essentially handcuff the person and take them to the police station.</p>
<p>An arrest...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Handcuffs are required?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: All arrested persons are handcuffed, yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, would you agree then if the officer made the valid stop and exercised the... the option, which... which it is understood I think clearly that he has, to require the driver to get out of the car, the officer at that point could at least have... have gone to... to the... to the point of a Terry kind of pat-down search?</p>
<p>Do you... do you concede that?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: If he had the necessary suspicion...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: He's... well, we assume that it's a valid stop for a traffic violation, and we assume that he has ordered the person out of the car so that the driver is standing right in front of him.</p>
<p>Could he not then have... have conducted a Terry pat-down without more?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: He could have conducted a Terry pat-down.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Okay.</p>
<p>That would be regardless of any suspicion caused by the appearance of the person or bulge in his waist or something like that?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Well, as recently as Minnesota v. Dickerson, the... this Court has reaffirmed the requirement of Terry, that there be some articulable basis to believe this person is armed and dangerous.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's why I don't understand your response to Justice Souter.</p>
<p>I... don't you think that the mere fact that the person was speeding creates such an articulable reason why you have to search the person?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: No, I don't believe that simply speeding...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Then your answer to me should have been different, shouldn't it?</p>
<p>Shouldn't you have said, no, he does not have the basis for a Terry pat-down?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes, that's correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, you've... you have conceded that he could have been arrested, and what is it under Iowa law that it takes, you said, handcuffs going to the station?</p>
<p>Is that necessary?</p>
<p>Suppose the officer had just said, I'm placing you under arrest, and he said those words before he searched the driver and the passenger and the inside of the car.</p>
<p>Suppose he said, you're under arrest, and then he conducted the search.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: If he had done that, then it would have been a valid search incident to a lawful arrest.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So, the whole thing turns on whether the officer says you're under... you're under arrest or here's a ticket.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes, but that is a distinction that... that...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Then what happened to the handcuffs and the station?</p>
<p>I'm trying to determine what constitutes an arrest under Iowa law, and if all it takes is the words, you're under arrest, then it's a different case than if you have to go through quite an... an involved procedure to effect the arrest.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Well, Your Honor, an arrest in Iowa does not differ in terms of the seriousness of the offense.</p>
<p>An arrest is placing somebody in the custody of the State.</p>
<p>The State exercises dominion over their body, and they are arrested for the purposes of commencing a prosecution for a public offense.</p>
<p>It necessarily entails going to the jail and being booked at the jail and having to post bond.</p>
<p>That is what I understand to be...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, then you're giving a different answer to the one you gave before when I asked you, is it enough that the officer says, you're under arrest.</p>
<p>This is... the officer says, you're under arrest.</p>
<p>He then searches the car, finds whatever was found here, a small bit of marijuana, a pipe, then brings the person who he has already told you're under arrest down to the station house.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I didn't mean... I just meant to say that when the officer says you're under arrest, that would commence the arrest process.</p>
<p>That is not the entire arrest.</p>
<p>That would begin the arrest process.</p>
<p>You are under arrest.</p>
<p>The officer would take control of the person.</p>
<p>Then the rest of the procedure would have to be...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Your basic argument here, as... as I understand it, is that while there is a justification for a full search when you have an arrest, take the person into custody, the... as we said in... in Robinson, those facts are not present when you simply issue a citation.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: That's correct, Your Honor.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Suppose the police officer said, look it, I'm entitled to arrest you and take you to the station, and I'm not going to do that.</p>
<p>I'm just going to give you a citation if you let me search the car.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I think under Bumpers v. North Carolina, that would be a legitimate reason for questioning the voluntariness of that consent because that would be... just be an acquiescence and a claim of lawful authority by the police officer.</p>
<p>I would question...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, if the officer had the right to take him into custody, why couldn't he give him that choice?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Well, I think that would... that would simply be an issue of whether the consent would be... would be valid.</p>
<p>I think consent can be coerced by threats to do lawful things as well as unlawful things.</p>
<p>And I think that was basically the... the holding in Bumpers v. North Carolina.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Mr. Rosenberg, you... you pointed out that historically the distinction seems to have been recognized between searches incident to arrest and the consequences of a mere citation.</p>
<p>Why?</p>
<p>What is it about the arrest, assuming that a valid arrest is made, that justifies the search that doesn't justify it in the non-custodial situation?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I would like to answer that question by quoting from United States v. Robinson, 414 U.S. at 234, note 5.</p>
<p>I quote.</p>
<p>The danger to the police officer flows from the fact of arrest and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.</p>
<p>And I would elaborate further that a traffic citation is a very common occurrence in this country.</p>
<p>In Iowa alone, we average 400,000-plus a year.</p>
<p>Citizens are not in great fear when they're pulled over for a traffic violation.</p>
<p>They know it will be a brief encounter.</p>
<p>They know that they will soon be free to go.</p>
<p>They know they will receive a summons.</p>
<p>They can go to court to contest it, but most elect to pay a fine and plead guilty.</p>
<p>This is not a provocative encounter.</p>
<p>Whereas an arrest presents other unique threats to the officer's safety.</p>
<p>The person may have items in his car that if... if were uncovered, he might go to a prison for a long period of time, including life.</p>
<p>And there is going to be an extreme danger trying to bring this person under control if he has a lot to lose by being brought under control.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Of course, that's just one of the justifications that it would express.</p>
<p>The other one is to obtain... obtain necessary evidence.</p>
<p>Isn't... isn't that another justification that's been alluded to besides protecting the... the officer?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes, that is...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I mean, if he's arresting somebody outside the car, why should he be able to search the inside of the car?</p>
<p>Just keep the guy outside the car.</p>
<p>He can search the inside of the car in the case of an arrest to obtain necessary evidence...</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Could I ask you, in your... in your researches on the common law, did the common law draw a distinction between a... what you've called a custodial arrest and a non-custodial arrest?</p>
<p>Would the common law have considered the... the stop of the car an arrest?</p>
<p>I mean, the policeman is telling you, go no further.</p>
<p>If you go further, you know, you will be in violation of the of the law, and I will use force to stop you.</p>
<p>Is that... would the common law consider that an arrest?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Justice Scalia, I am not aware that the common law had any other means to prosecute a criminal offense... to commence the prosecution of a criminal offense outside of arrest.</p>
<p>But I also believe with the proliferation of a lot of minor misdemeanor offenses in this country, that the citation came into vogue as a more reasonable manner in which to... to prosecute a criminal offense.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I think you mistook my question.</p>
<p>I guess I'm really asking whether in the common law all seizures of the person were not considered arrests.</p>
<p>Is it clear that there were two categories of seizures of the person, one of which was just, you know, a temporary traffic stop and another one was what you call a full custodial arrest?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I... I do not know that the common law distinguished between a... a simple seizure of the person and an arrest.</p>
<p>I think that a lot...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, if that's the case, then... then... and if it didn't, then the long history of... of allowing searches of this sort only in connection with an arrest could be a long history of allowing searches in connection with a traffic stop, whether you give a citation or not.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: The only common law history that I'm aware of is that which was referred to in United States v. Robinson where the Court indicated that the common law authority or historical sources in this respect were scarce.</p>
<p>And the Court...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, I guess we didn't have a lot of cars and trucks back in the 1600's and the 1700's.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: We didn't have any.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: If we move forward from the common law to cases decided by this Court, Berkemer against McCarty you cite in your brief I guess for the proposition that a traffic stop is not an arrest.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: That's correct, but I believe later this Court clarified its decision in Berkemer and said if the officer had told this individual that he was under arrest at the inception of this particular encounter, then the Court would have considered that an arrest.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: That was a clarification?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Oh, it was?</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I assume...</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I don't know if it was a clarification or not.</p>
<p>I don't... I'm not going to venture a guess at that.</p>
<p>There's another reason that searches incident to arrest differ from searches incident to citation, and that is in a lot of Fourth Amendment areas, a larger intrusion will subsume a smaller intrusion or, so to speak, lesser included intrusions.</p>
<p>And once the person has been taken into custody for arrest, a lot of rights are lost, a lot of things can be done which in and of themselves would have been intrusive or in violation of the Fourth Amendment, but when subsumed by the greater intrusion are no longer the case.</p>
<p>In a situation where a citation is issued, there is no law... there is no physical intrusion of the sort that this Court has ever found allows lesser included...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That was Justice Powell's argument in... in Robinson.</p>
<p>I'm not sure that I understand it because if there is a right to make the greater intrusion, why isn't there the right to make the lesser... his argument, as I understand it, was just as you have said, that once you've arrested, the search is just kind of de minimis.</p>
<p>I mean, there's nothing much left for him to object to when his body is subject to custody.</p>
<p>And that's true.</p>
<p>But I don't know whether it really goes to the issue because if there is a right to make the greater intrusion, why isn't there a right to make the lesser intrusion?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Well, because the... the right to make the greater intrusion, for purposes of the Fourth Amendment, is a hypothetical situation.</p>
<p>No arrest was made and that is the key point in this case in terms of the Fourth Amendment.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but you... maybe I misunderstand you.</p>
<p>I thought you had conceded that an arrest could have been made here.</p>
<p>It would have been a lawful arrest.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I have conceded that an arrest could have been made... made for the traffic offense, but an arrest wasn't made.</p>
<p>A citation was issued.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but if... but my question is, if the... if the right to commit to the greater intrusion, the arrest, is assumed, why doesn't it follow that there is a right to commit to the lesser intrusion, which is the mere search?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Because... and I would refer to United States... Whren v. the United States, that the Fourth Amendment is concerned with the actual events and not those events which could have happened or normally would have happened.</p>
<p>It's sort of the reverse argument that was made in Whren.</p>
<p>There the defendants tried to rely on the fact that normally, police... these vice officers would not have made this arrest, and therefore, they should be the beneficiaries of this hypothetical situation.</p>
<p>The other side of the coin is that the State should not be allowed to be the beneficiary of an intrusion in lesser... in lesser included smaller intrusions that in fact never occurred.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Rosenberg, in your... you made some rather graphic comparisons in... in... in your briefing in some of the others that if you say every citation can trigger a... a full custodial search, then the jaywalker is in danger, the person who's walking a dog without a leash.</p>
<p>I mean, were these examples brought up to the Iowa Supreme Court, to say that every citation for every petty offense can yield a search that will turn up something that has nothing to do with the offense?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I don't believe that those specific examples were brought up in briefing to the Iowa Supreme Court.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Because there is no limit in Iowa, as I understand it.</p>
<p>Everything... every traffic violation... you don't signal and you can be arrested.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Every traffic offense in Iowa is an arrestable offense, and therefore every traffic offense in Iowa, for which somebody is cited, is the basis for a full search of their person and vehicle...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Do you count driving under the influence as a traffic offense?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: No.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Because there, it seems to me, the officer might have a reason akin to those given in Robinson for wanting to search for more evidence, but it seems to me also that with speeding, the offense is complete in a sense when the car is brought to a stop, and you're not going to find anything inside the car that is going to help you prove the person has been speeding.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: But most traffic citations are... produce no need to look for evidence.</p>
<p>But I would like to say this, if there is such a citation that would necessarily involve evidence or a need to look for evidence, then that particular search could be governed under the Carroll decision, simply that the officer has probable cause to believe that an offense has occurred and probable cause that there may be evidence in the car.</p>
<p>And that search could be justified under existing doctrine.</p>
<p>But your typical traffic offense does not involve any evidence other than what the officer has acquired already.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And if I understand it correctly, it's not the State law that... that... that you can search whenever you issue a citation.</p>
<p>It's only the State law that you can search whenever you issue a citation instead of arresting when there is an offense that... that permits arrest.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: That's correct.</p>
<p>But all offenses...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So, walking a dog, failing to curb your dog and some of those other examples really... would they be a problem under Iowa law?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: No.</p>
<p>Those are arrestable offenses too.</p>
<p>The Iowa...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They are arrestable for failure to curb your dog?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Wow.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Because the Iowa Supreme Court recently...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They're tough out there...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes, they are.</p>
<p>And that's why we're here.</p>
<p>[Laughter]</p>
<p>This law applies to municipal offenses the Iowa Supreme Court has held recently in State v....</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And it goes up too, does it not?</p>
<p>At least the... the ability to substitute a citation for an arrest goes up to second degree burglary.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: There I suppose there might be a reason to search that you wouldn't have in the case of speeding.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Absolutely, but once again those searches would be justified under existing reasonableness... reasonable searches out of this Court, Carroll, or any of the other...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, would you say that if you're cited for second degree burglary and not arrested that there is a right to search, let's say, the vehicle if the vehicle was stopped and the citation is issued for second degree burglary?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I would think so because, you know, that offense would likely involve the possession of recently stolen property.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, let's assume that there's no... no probable cause to... to believe that there's burglary tools or the fruits of a crime in the car.</p>
<p>Could the officer incident to the citation for burglary search the car without more?</p>
<p>I'm surprised you're conceding that.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: No, no, no.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Your answer is no.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I have to say no.</p>
<p>[Laughter]</p>
<p>That's correct.</p>
<p>And that... that would be because the citation itself does not give rise to the justification.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, it gives rise to one of the justifications advanced in Robinson, doesn't it, the... the need to search for evidence?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Plus the fact I suppose to issue the citation, they had to have probable cause, and if they just got probable cause right at the moment, that would include probable cause to search the vehicle I suppose.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Well, the probable cause would be needed for both the arrest and the search, and generally for a traffic citation, it will only supply the... the justification for the arrest.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The need for... for... for searching for evidence justification that the Chief Justice referred to would be... would be taken care of by the probable cause, by the presence of probable cause.</p>
<p>If there is indeed need to search for evidence, you have probable cause and you don't have to rely on the arrestability of the offense.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Right?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Right.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And so, the only justification we're talking about is the need to keep yourself safe.</p>
<p>I don't think you should issue citations to burglars anyway.</p>
<p>Do you know if they've ever done that?</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: I'm not aware that they do it.</p>
<p>It's a theoretical position.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Writing... do they ever just give them a warning?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: If there are no further questions, I'd like to reserve my remaining time for rebuttal.</p>
<p>Thank you.</p>
<p>Argument of Bridget A. Chambers</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Very well, Mr. Rosenberg.</p>
<p>Ms. Chambers, we'll hear from you.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>In 1983, Iowa passed a statute which allowed officers to use citations for almost any offense.</p>
<p>At the same time, the Iowa legislature authorized... stated that... that when a citation is issued, officers may still search and make any otherwise lawful search.</p>
<p>Patrick Knowles challenges that statute as it applies to the search of his car made after he was issued a speeding ticket.</p>
<p>The concerns raised by petitioner in this case are met by the fact that the Iowa statute requires probable cause to arrest in every case where a search is made.</p>
<p>It's probable cause to arrest which makes it both to arrest and issuance of a citation reasonable under the Fourth Amendment.</p>
<p>It's probable cause to arrest...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I just be sure that you agree with what your opponent said on the scope of the citation?</p>
<p>This includes something like jaywalking?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: In Iowa, almost every ordinance...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And therefore your... so, it does...</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: It does, generally, yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Because you could arrest him for jaywalking.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Correct.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And therefore, if there... if somebody jaywalks, the police could search him.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Correct, because they could make a custodial arrest and search incident thereto.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And that would include a strip search.</p>
<p>I mean, when you're arrested, you could be subject to strip search.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: No.</p>
<p>It...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: A strip search for jaywalking?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: No.</p>
<p>In Iowa, there clearly could not be a strip search for two reasons.</p>
<p>First of all, Iowa has a specific statute that deals with that, and it is 805.3 I believe... 804.3, and that statute specifically says that for scheduled traffic violations or simple misdemeanors, which would include ordinance violations...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But your argument is there would be no constitutional objection to a strip search for a traffic citation.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: No.</p>
<p>That's the second prong of our answer, and clearly under this Court's prior decisions in the context of search incident to custodial arrests, a strip search can only be made under certain very carefully restricted circumstances which I cannot conceive could exist in the context of a jaywalking or... or other city ordinance violation.</p>
<p>It's probable cause to arrest which also prevents random suspicion-less searches which were a major part of the petitioner's brief in this case.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Do you acknowledge that the rule you're asking us to confirm today, the Iowa opinion, is an extension of our previous cases?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: The... it's the State's position that in interpreting Iowa Code section 805.1(4), the Iowa court simply says that statute authorizes whatever the Fourth Amendment authorizes and then went on to decide that the Fourth Amendment does authorize search incident to citation.</p>
<p>So, yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, is this an extension of our prior cases?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: We think it's... it's certainly an issue that hasn't been decided before.</p>
<p>It's the State's position that it's not an extension of your prior opinions because such searches always require probable cause to arrest and...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, but Cupp v. Murphy certainly didn't speak in terms of a broad right to conduct searches even with the presence of probable cause.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Right.</p>
<p>It's the State's position that you must have both probable cause to arrest and initiation of a prosecution in some manner.</p>
<p>That we believe is consistent with the Court's prior opinions.</p>
<p>In Cupp v. Murphy, the difference is that in that situation, although there was probable cause to arrest, there was not any kind of an initiation of a prosecution.</p>
<p>There were no charges filed whether custodial arrest or by citation.</p>
<p>No prosecution had been initiated.</p>
<p>So, given that particular circumstance, the court simply said the exigencies that exist in this case, Cupp, do not give rise to the kinds of concerns that arise when a prosecution is initiated, that is, escape or destruction of evidence and that because there is no prosecution...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, your... there's no reason to expect evidence to be produced by virtue of this search of the traffic violation, is there?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: The State does not concede that point, Your Honor...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Really.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: for a couple of reasons.</p>
<p>First of all, if the context is speeding, certainly we wouldn't be looking for the kinds of broad ranging evidence that we might look for in a burglary case, for example.</p>
<p>But certainly identity is always at issue in any case, and that's...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: How can you say that at the point that the decision is made to issue the citation?</p>
<p>I mean, the... at that point, the individual has presumably produced a driver's license or whatever identification is.</p>
<p>If that isn't so, the officer isn't going to let him go with a citation.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: It's certainly true that the... the person will likely have produced some kind of identification.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, would the officer let him go with a... with a citation if he didn't have any identification?</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Surely not.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: He wouldn't know who to write in the citation.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Right, likely not.</p>
<p>Two things are true then, Your Honor.</p>
<p>If the officer can't search... if the officer has any doubts about whether that... that identification is valid or if the person can't produce acceptable identification, then the officer will likely make a custodial arrest when he might not if he could search.</p>
<p>Let me give you an example.</p>
<p>It's not at all uncommon for an officer to stop someone, and particularly in Iowa where we're dealing with rural communities, small population, to stop someone and have that person say, I have a license.</p>
<p>I simply don't have it with me.</p>
<p>My name is Bob Jones.</p>
<p>I live at 308 Elm Street.</p>
<p>The officer may well know that that information is true and feel comfortable writing a citation, and because they're comfortable with the identification, the officer can... can make the necessary records checks to confirm that the license is valid.</p>
<p>On the other hand, it certainly isn't uncommon for suspects to misidentify themselves or present false ID's, and in that situation, the officer who has some doubts about that identification either has to issue a citation not knowing if it's being issued in the right name, or has to make a custodial arrest.</p>
<p>And it simply...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, I think you're... I don't know whether that's... I'm from a small town too.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: And I... I'm not ready I think to concede that your example is much of a real world example, but assuming... assuming it is, wouldn't it make more sense for us simply to say, in order to keep our kind of... not only our constitutional categories but our constitutional protections intact, to say that in that case it's better for the officer to make the custodial arrest and to justify any search on that basis than to consider broadening the scope of the so-called search incident exception to include a... a citation for... for any kind of misdemeanor or traffic violation even?</p>
<p>Wouldn't it make more sense to say, look, if that's your problem, go ahead and arrest him and then we all know where we stand?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well, of course, the State's second response to the issue of whether there's evidence in a... in a speeding case, for example, is that in Gustafson and Robinson, the Court said because such a search is reasonable, we don't look in a particular case to see whether there would, in fact, be evidence or weapons to search for...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay, but that goes back to another one of the justifications in Robinson.</p>
<p>One was the evidentiary justification that you referred to and the other one, which we've already heard about this morning, is the justification of protecting the officer and in fact making good on the arrest that... that is made.</p>
<p>I don't see how that can apply here because, as I understand the facts, the point at which the decision to cite is announced is, in effect, the end of the encounter.</p>
<p>The officer says, I'm not going to arrest you.</p>
<p>I'm going to give you this citation instead.</p>
<p>The fear for police safety is, I would suppose, at a minimum in that case, whereas it is at a maximum when an arrest is made.</p>
<p>So, why... why isn't Robinson against you?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well, certainly one would normally expect that a search based on a concern for officer safety might be made at the initiation of a stop, but I would point out a couple of things.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But it's... but it's not.</p>
<p>I mean, we're talking about... I presume we're talking about the case that we've got here in which there isn't any search until the encounter to the... to the point of issuing the citation is over and then the officer says, and by the way, I'm going to search your car.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Correct.</p>
<p>It's... it's the State's position that officers have to be allowed to make the decision for themselves what best serves their safety.</p>
<p>In this case, the officer stopped Knowles, kept him in his car while the officer wrote the citation.</p>
<p>The officer called for backup and at the point at which a backup officer arrived, then the officer issued the citation and made the search.</p>
<p>So, one can infer that the officer kept Knowles in a place where he could keep him at least partially under observation until an officer came to serve as backup and that he made...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, can infer that the officer always intended to make the search because he was relying on State law and he realized that he might very well want some extra protection while he was searching a car.</p>
<p>But that sort of begs the question here because the... the... the officer protection justification in Robinson is a justification for protecting the officer when he has an individual in the... in arrest... in custody following an arrest.</p>
<p>And that by definition is what we don't have here.</p>
<p>So, it seems to me that whether your argument ultimately prevails or not, we would certainly have to extend Robinson in order to see it your way here.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: If by extend Robinson, the Court means apply it to a situation where the officer subjectively did not fear the suspect, then the State does not agree with that characterization because I think the Court noted in Robinson...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I was going to... go ahead.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: I think the Court noted in Robinson that that officer did not have a subjective fear of the defendant.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, but that's because...</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Certainly...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Robinson said we're going to establish general rules.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Okay.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: And it's the State's position that similarly a general rule should be established in this context.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But... but in a way you... you would be going beyond Robinson here because you're saying that there's an authority to search that would not be the same basis as was set forth in Robinson.</p>
<p>When you have a traffic stop, you're not going to find any additional evidence of speeding by searching either the person or their car, and the safety situation is... is simply not as great when you issue a citation as it is when you have a formal arrest.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: We certainly agree that although there are studies that say that... that show that officers are not objectively able to accurately predict which offenders are likely to be dangerous and while there are... are statistics that indicate that traffic offenders do pose a threat, certainly common sense would tell us that on a continuum of danger, in most cases most offenders are less likely to be dangerous...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And the officer has it his power under Iowa law to obviate at least a part of that danger by making a custodial arrest.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: And... and that, Your Honor, is why we... we make the statement that it's not really an extension of Robinson or Gustafson because in every case where the officer can search under the Iowa statute, the officer can already make a custodial arrest...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How many other States have a policy like Iowa's?</p>
<p>I... I haven't been able to uncover more than perhaps Arkansas.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: There are a handful of States who either by rule, statute, or judicial decision have a practice similar to Iowa's.</p>
<p>In Vermont, the State v. Greenslit case which is cited in the State's brief.</p>
<p>Florida issued a decision in State v. McCray, 626 S. 2d 1017, Arkansas in the State v. Earl decision, 970 S.W. 2d 789, and Colorado in the...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Are these all States that say that any... all these traffic offenses... that all of those are subject to full custodial arrest?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Colorado makes a bit of a distinction in that there they were dealing with a statute... an offense for which the statute specifically prohibited arrest, and so some of...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I'm asking you about how many are like Iowa because, frankly, it startled to me to think that... that a police officer could make a full custodial arrest for the pettiest infraction.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: I'm sorry.</p>
<p>I misunderstood the question.</p>
<p>All... most States do and depending on who counts, it varies between 25 and 30.</p>
<p>My count came up with about 27 who allow it in virtually every circumstance.</p>
<p>Almost all 50 States allow it in certain circumstances.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask another question about the routine procedure that police follow?</p>
<p>Is it not correct that normally, when a custodial arrest is made, the officers have a procedure they follow which would include a rather complete search to be sure there are no weapons around, whereas normally in the citation situation, unless they go ahead and arrest, they do not conduct a search?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: That's normal...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: In the States except for Iowa.</p>
<p>But now, with Iowa's statute on the books, I suppose in Iowa now the police are routinely making searches in these situations?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: No.</p>
<p>Actually, Your Honor, although the statute went into effect in 1983, this practice is far from routine for a couple of reasons.</p>
<p>I think one could infer that one of the reasons is that until now the constitutionality of those searches were some... were unsettled and cautious prosecutors were likely advising cautious law enforcement officials to exercise a great deal of care in this area.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So that now that... if... if we affirm the Iowa court, presumably the practice would become much more prevalent.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well, certainly as one would expect prior to Belton, there were probably few auto searches under that... that doctrine.</p>
<p>Prior to the decision in this case, certainly officers are exercising caution.</p>
<p>But secondly...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Doesn't that also indicate that the Iowa officers do not consider it, in the usual case, necessary to search in order to protect the officer?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: That's... the second ground is that I think that officers do exercise a great deal of discretion, and... and are careful about when they use this.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But... but you're asking us to have... have a rule which presumes that there's a danger to the officer.</p>
<p>I suppose that's the basis for your rule.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: It's certainly one of the two...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But that presumption doesn't accord with the facts even as Iowa officers now understand.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well, certainly just as the law currently allows custodial arrest and search in every situation, which is unquestionably constitutional and conceded by... by Knowles, and officers currently are not searching in all those cases, they would... they would behave presumably similarly under search incident to citation.</p>
<p>The... the fact that officers exercise discretion certainly doesn't defeat the rule.</p>
<p>The rule presumes that it's reasonable under the Fourth Amendment because of concerns with preservation of error and officer safety, and if officers subjectively choose not to go to the limits of their power, the State believes that that's a proper exercise of discretion.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Ms. Chambers, there's another side to this too because the person who's apprehended, if in fact there's arrest, there's a warning light that will go off because that person will get a Miranda warning.</p>
<p>But here... your argument is very appealing when you say, if the greater, then the lesser; if the full arrest, then the citation.</p>
<p>But the other part of it is the defendant who gets a traffic ticket doesn't have any idea that that's the kind of situation he faces, where if there's a full custodial arrest, he must be given his Miranda warnings.</p>
<p>So, the... it's a pretty good situation for the police.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well, of course, if a custodial arrest, Miranda would only have to be made if the officer wished to interrogate.</p>
<p>So, it's not necessarily true that it would be given in every case.</p>
<p>But if the question is, does this allow officers to search without providing those protections provided by arrest, of course, the answer is yes.</p>
<p>However...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: It does seem an enormous amount of authority to put into the hands of the police.</p>
<p>As you said, you have to leave it to the judgment and the police will exercise good judgment.</p>
<p>But that's... we do have constitutional checks because we're not always so sure that... that the police will exercise good judgment.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: But taking this back into the... a practical example, the officer in the Knowles case could already have made a custodial arrest and searched, and unless the officer wished to interrogate Mr. Knowles, he would not have been required to give a Miranda.</p>
<p>Similarly, an officer could arrest and, under Iowa law, then search and subsequently release the person on citation which is in fact the... the practice advocated by the American Bar Association and the American Law Institute.</p>
<p>All of those circumstances are functionally identical from the point of view of a suspect.</p>
<p>It... as a practical matter, it matters little to a suspect whether the officer utters the words, you're under arrest, before he searches and releases.</p>
<p>For those reasons, although we recognize that... that... that one could see this as skirting Miranda, for example, really in a functional manner it is not.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But it's a lot of trouble not just for the... not just for the suspect but for the officer and for the system to arrest somebody.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: It certainly is.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And it's a deterrent against conducting... conducting searches where there is genuinely no reason to conduct a search.</p>
<p>Yes, you can do it if you arrest, but you... you have to do the paperwork.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: That would...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Police don't like to do paperwork I gather from watching television movies.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: We will certainly concede the latter.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: They don't like to do...</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: That would be true if it were not for the fact that under Iowa law officers can arrest, search, and then subsequently release on citation.</p>
<p>Because they can promptly release on citation, those... those practical limits that might... that might arise don't...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Excuse me.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They can arrest, search, and then say never mind the arrest?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Wow.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: And in fact, the form that they would use...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I really only did this arrest so I could search.</p>
<p>I've done the search.</p>
<p>Here's a citation.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well, that's...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Let's forget about it.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: That's certainly one take.</p>
<p>Of course, the State's position is that that releasing on citation allows the officer to... to do those things which he finds necessary to confirm the identity, investigate the crime, obtain any evidence necessary, and then releases the suspect, minimizing the amount of detention required.</p>
<p>Again, I would point out that's the position that the American Bar Association and the American Law Institute in fact advocate.</p>
<p>The position advanced by Knowles is... is really one that is counter-effective in terms of the overall protections of the Fourth Amendment.</p>
<p>He's asking the Court to require that a custodial arrest be made in any case where... where the officer wishes to search to protect his safety, to preserve evidence, or both.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: That's not entirely true, I don't think, Ms. Chambers.</p>
<p>I think if there were reasons simply by looking at the person in the car to... to feel that he was armed or anything, I think you'd have the authority to search under Terry without needing to rely on the custodial arrest doctrine.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: But certainly there would not... that would not meet the needs to preserve evidence.</p>
<p>Yes, there are some situations where the officer could search under Terry, but certainly not all.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And what evidence do you need to... to search for when you've stopped a person for speeding?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Again, identity, but there also might be... speeding is... is probably at the lowest end of the continuum.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: If you'd come here on second burglary, it might have been different.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Certainly, and of course...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Actually in this case, he knew the defendant.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: He did.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: He knew that he was Knowles when he stopped... before he stopped him.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: He did, and certainly in this case the officer made no bones about the fact that he suspected that there were drugs.</p>
<p>He searched for drugs and he found drugs.</p>
<p>But again, any rule enunciated by this Court will apply not only to this case but by analogy to... to every case.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And under Whren, we said there's no such thing as a pretextual search.</p>
<p>The fact that he thought there might be drugs doesn't counsel against the reasonableness of the arrest.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Yes, and under Robinson and Gustafson, the Court also said that the fact that the officer didn't believe that he would, in fact, find evidence or a weapon did not defeat the need for the search, the search being reasonable under the Fourth Amendment.</p>
<p>That's the end of the... that's the end of the question and the officer may search.</p>
<p>And we believe the search here is reasonable for a couple of reasons.</p>
<p>First of all, as I've said, every search incident to citation in Iowa requires probable cause and initiation of a prosecution.</p>
<p>So... in some manner, here by citation.</p>
<p>So, by definition, the officer has authority and a right to make the arrest.</p>
<p>In those circumstances...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask you about your statement, requires initiation of prosecution?</p>
<p>I know I've been stopped and the officer... well, he gave me a lecture and I had a warning.</p>
<p>And sometimes they may stop, intending initially to give a citation, and then they figure it's a... it's a... some unusual excuse.</p>
<p>The speedometer wasn't working or something, and... and they decide later to just give a warning.</p>
<p>In Iowa, if they stop, must they give a citation?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: No.</p>
<p>They may give warnings.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: They could give a warning.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Could they give a warning after initially arresting the person?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Yes, if... if by arrest, you mean saying, you're under arrest.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Yes.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Or certainly they...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: They could... so, in other words, they could arrest, search, find nothing, and then say, well, I'll just give you a warning.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: They could.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: The State, however, does not believe that the Court needs to go as far as deciding whether search could be conducted where only a... only a warning is issued.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Could... could they arrest... under Justice Stevens' hypothetical, could they arrest, search, then give a warning, if the arrest were simply a pretext for a search and they had no intention at the time of arrest of doing anything other but giving a warning?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: The...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Absent finding something.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Did you assume arrest?</p>
<p>Did I hear...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Could the... could the... could the officer arrest, having the intention at all times simply of giving a warning?</p>
<p>Could he arrest simply in order to effect the search?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Of course, that's not this case, and it raises I think the question of pretext.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, but you were the one that said we have the right for a lot...</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Right.</p>
<p>[Laughter]</p>
<p>I think... I think they could do that.</p>
<p>I assume defendants would raise the issue of pretext.</p>
<p>I think Whren likely would answer that question.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, it's not... it's not... it's not a pretext.</p>
<p>It's... it's... it's an instance in which the officer's objective actions really are... are... do not disclose his true purpose.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: I think he could do that, Your Honor.</p>
<p>Again, we don't think you need to go that far, but here's why I think you could.</p>
<p>I think the underlying premise, at least as I read Whren, was that the officers in that case followed and subsequently stopped the car because they thought they would find drugs.</p>
<p>And... and the issue there, of course, was pretext.</p>
<p>And I think... I think that what the Court is getting at is if the officer really all along wanted to search, was that arrest pretextual and if so, is that improper.</p>
<p>And it's... under Whren it would be the State's position it would not be proper.</p>
<p>Now, it may not be good public policy and it may raise some other concerns, but... but those wouldn't be answered by the Fourth Amendment.</p>
<p>But again, that's... that's not what happened in this case and the rule that the State is proposing would require initiation of a prosecution either by citation or by custodial arrest, leaving for another day the hypothetical posed by the Court.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I don't understand why it would require that.</p>
<p>You say it would require initiation of prosecution, but how can that be so if the officer would have authority to make the arrest because the guy was speeding, and then he... he makes the search, and he says, I don't think I want to write up a ticket.</p>
<p>I'll just give him a warning.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: What would prevent him from doing that?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: There is an argument to be made... and it may be a good one... that probable cause to arrest alone would be enough, but the State has recognized the Court's concerns in Robinson, Gustafson, and other cases that the... the scope of the search and the immediate need to search is related to custody or an equivalent of custody.</p>
<p>So, the reason we... the reason we are proposing a rule that would require initiation of a prosecution is that it's our strong belief that when a prosecution is initiated, whether that's by custodial arrest or by issuance of a citation, those... the same concerns with officer safety and preservation of error arise.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, and I know you say that, that it would... that's the rule you propose, but it seems to me that if we adopted the rule you propose, there would be nothing to prevent the officer from conducting all the searches he wants to and simply giving warnings whenever he finds nothing and going ahead with the prosecution whenever he finds something.</p>
<p>That could happen under your rule.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: It could happen, but let me remind the Court that it could also happen with custodial arrest...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: because that is the equivalent of arresting and then saying, eh, we don't really want to proceed with this prosecution.</p>
<p>We're dismissing the charge.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: There was a point... there was a point, Ms. Chambers, made in response to that.</p>
<p>And you said, yes, it's so, but maybe the good citizens of Iowa would be a little upset if they get arrested every time they forget to signal when they're turning.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: We believe that like the citizenry would be upset if custodial arrest were made in every case, they would also be upset if... if the right to search were abused.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, you... you... the usual rule is there can be a search incident to an arrest.</p>
<p>You want to turn it around and have an arrest incident to a search.</p>
<p>And it seems to me that that's an abuse of authority.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: Well...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If the officer arrests not intending really to arrest, that's an abuse of authority.</p>
<p>You're not really proposing that this could happen, are you?</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: We're certainly not advocating that that should happen, and we're certainly not... we're not encouraging that.</p>
<p>Given the hypothetical, we think it could conceivably happen, and... and for the same reasons that arrest followed by dismissal of the charges wouldn't violate the Fourth Amendment, likely that would not.</p>
<p>But let me go back to the... to the question posed by... by... by the Court and that is, would... would the citizenry become upset?</p>
<p>Certainly if custodial arrest is abused, it's likely that the legislative process would lead to curbs on... for which offenses custodial arrests could be made.</p>
<p>Similarly, if... if officers abuse the right to search incident to citation, the legislature will curb that authority, and we not only believe that that would happen if abuse has occurred, but we think it should happen, that that is the essence of the...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But the answer to that is that officers are going to use some judgment and they're only going to use this power when they think, well, I'm not sure this fellow doesn't look just a little bit suspicious.</p>
<p>He was a little nasty in my conversation.</p>
<p>I mean, they could have the authority without using it in every case.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: That's right, just as they currently don't always exercise the custodial arrest.</p>
<p>But again, while that could be used in a discriminatory or abusive manner, one, there's no evidence that that's happening in Iowa since 1983, and secondly, if... unless it violates the Fourth Amendment, that kind of discriminatory or abusive police procedure, while objectionable...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Or better yet, they might save it for out-of-state motorists.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: They might but certainly in this case, the person arrested was a white man who had been born in Newton, so there is no evidence that it is being abused.</p>
<p>But, of course, if it were abused, it certainly would not be something the State would advocate.</p>
<p>If it were abused, the legislative process or police regulations or certainly advice of counsel are ways that those kinds of abuses can be curbed.</p>
<p>And certainly if it's used in a discriminatory manner, the Equal Protection Clause provides the remedy there, as this Court noted in Whren.</p>
<p>I'd like to point out just a couple of other things and that is that one of the things that Knowles' proposal would require is for this Court to frequently get into the issue of the officer's subjective intent, an examination that this Court has rejected time after time after again... time after time and most recently in Whren.</p>
<p>The reason that we'd have to get into that is this.</p>
<p>Some of the examples posed by the Court dealt with when the officer made the decision to search, and it would be an open question, what happens if the officer makes the search and then doesn't issue the citation until later or then makes the custodial arrest subsequently?</p>
<p>Do we have to determine whether the officer intended to arrest when the search was made?</p>
<p>Do we have to determine when that decision was made?</p>
<p>Those kinds of subjective evaluations are nearly impossible...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But arrest is an objective thing.</p>
<!-- bridget_a_chambers--><p><b>Mr. Chambers</b>: It is, but that would, of course, require the Court to set down a rule that arrest would be required in all of these cases rather than the less intrusive alternative of issuing a citation.</p>
<p>Rebuttal of Paul Rosenberg</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Chambers.</p>
<p>Mr. Rosenberg, you have 2 minutes remaining.</p>
<!-- paul_rosenberg--><p><b>Mr. Rosenberg</b>: Thank you, Your Honor.</p>
<p>I would just like to make a few comments.</p>
<p>Ms. Chambers mentioned that the officer suspected Mr. Knowles had drugs.</p>
<p>The officer, although he may have suspected, testified at the suppression hearing that he had no cause, no suspicion, that Mr. Knowles had any drugs on him on this occasion, and that is in the appendix.</p>
<p>The second response I'd like to make regarding the enforcement of this statute, although the statute was passed in 1983, it wasn't until about 1990 or thereafter that the Iowa Supreme Court gave it its construction and anybody had any idea that this was what it meant.</p>
<p>And it hasn't been enforced much because a lot of county attorneys have been advising the police officers not to rely on this as their sole basis for a search pending their belief in the... that it may be overturned.</p>
<p>And finally, in response to Justice Ginsburg's question about the citizens of Iowa not putting up with this, over 400,000 citizens in Iowa a year get traffic tickets.</p>
<p>If this policy were uniformly and nondiscriminatorily enforced, it... the right to arrest would be ended.</p>
<p>The legislature would end it.</p>
<p>I have confidence in that.</p>
<p>This policy can only be enforced... the statute can only be enforced selectively, otherwise it would politically not be stood for by the citizens of Iowa, and that in fact is one of the dangers of a statute like this.</p>
<p>Thank you very much.</p>
<p>I'll waive the additional time.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Rosenberg.</p>
<p>The case is submitted.</p>
<p>The honorable court is now adjourned until tomorrow at ten o'clock.</p>
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Attribution:&nbsp;</div>
The Oyez Project </div>
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Featured:&nbsp;</div>
No </div>
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Fri, 09 Jan 2009 14:50:15 +000058613 at http://www.oyez.orgMaryland v. Wilson - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1996/1996_95_1268/argument
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Case:&nbsp;</div>
<a href="/cases/1990-1999/1996/1996_95_1268">Maryland v. Wilson</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of J. Joseph Curran, Jr.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument now in Number 95-1268, Maryland v. Jerry Lee Wilson.</p>
<p>General Curran.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>Nearly 20 years ago this Court held in the case of Pennsylvania v. Mimms that it was reasonable under the Fourth Amendment for a police officer in making a car stop for a traffic violation to require the driver to exit the car.</p>
<p>The risk to the officer is such in these stops that it was also permitted for the officer to request the driver to get out without any suspicion that the driver would pose a danger to the officer.</p>
<p>The latest figures that we have available demonstrate that the risks are real to police officers in traffic stops.</p>
<p>The latest figures in 1994 show that 5,762 police officers were assaulted in traffic stops.</p>
<p>Indeed, since the decision in Mimms there have been over 200 police officers slain in traffic stops.</p>
<p>Because passengers, like drivers, have--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Excuse me.</p>
<p>When you say assaulted in traffic stops does that include those who were assaulted by people who got out of the car and physically assaulted them?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --The... yes.</p>
<p>Yes, Justice--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, that would cut the other way.</p>
<p>I mean, that... they'd be better off to leave them in the car, if that... you know, if that's the assault you're talking about.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Well, there were a total of some 52,000 assaults during that given year, '94, of which 5,700 were in traffic stops.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: What I'm suggesting is that the relevant figure is how many of the assaults came while a person was in the car, so that they might have been prevented by making the person get out of the car.</p>
<p>Many of them may have occurred by taking the person out of the car.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Those are figures are not available--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Okay.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Isn't it true, General Curran... I remember this from the Mimms case... that there's a split of professional opinion on whether it is safer for the officer to order them out of the car or to tell them to stay in the car?</p>
<p>Is there still a respected body of professional law enforcement opinion that says you're safer if you don't ask them to get out of the car?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Well, Justice Stevens, the typical practice, and I can refer to Maryland, of course, but I believe the briefs will show the typical practice is to control the risk.</p>
<p>That's what the training is, to control the risk, and typically they keep the driver and the passenger in the car.</p>
<p>However, having said that, as the New York v. Class case indicated, there is this discretion the officer can use, and what we're asking, of course, is the automatic rule for that discretion to be utilized in the Wilson case, as this Court granted in the Mimms case.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General Curran, are you saying that if the officer made the decision to keep the person inside, it would be the officer's call, too?</p>
<p>Suppose a passenger says, I want out.</p>
<p>I'm going to take a car and go home... take a cab and go home.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: The answer is yes, Justice Ginsburg.</p>
<p>We want the officer to be able to require the passenger to get out or, where it's appropriate, to stay in, and in order to control the stop the officer should be able to control the location of the passenger, and the location can be outside the car, or it could be, in an appropriate case, inside the car.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: How far does the authority extend?</p>
<p>Would you say that the passenger would be free to leave if the passenger chose after exiting the car at the officer's request?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: No, Your Honor.</p>
<p>We do not take that position.</p>
<p>We want the officer to be able to control the risk, control the location.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, you want more than the right to require the passenger to exit.</p>
<p>You want to require the passenger to be detained.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor.</p>
<p>We--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: For how long?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --We want... there is no time frame as... I can tell you what the typical stop--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: To be searched?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --No, Your Honor, not a frisk.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: To be asked any questions?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Could be asked, but not required to answer.</p>
<p>To get out, to step aside, to show your hands.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, you say there's no time limit.</p>
<p>I assume the time can be no more than is reasonably required for the officer to complete the process of issuing the citation.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor.</p>
<p>It would be within what is typically 10, or at the outside 20 minutes.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Can he order some people in the car and some people out of the car?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor, he could.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: What would be the reason for detaining the passenger in a situation like that?</p>
<p>I can see that safety reasons might suggest that you be able to... the officer be allowed to order the passenger out of the car, but for detaining them if they then wish to leave, what would be the Fourth Amendment reason for that?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: The officer has to... Mr. Chief Justice, the officer has to be able to control the stop, to complete safely the transaction, getting the information from the driver, the registration, the license, et cetera, and in order to do that safely, he needs to be able to know where any potential danger to him or her lies.</p>
<p>Controlling the location of, in this case Mr. Wilson, would have been the appropriate way to do that.</p>
<p>He could have seen that he did not pose a particular danger by seeing his hands.</p>
<p>We are suggesting that the balancing that this Court went through in Mimms is really the same for the Mr. Wilsons, the passengers.</p>
<p>There is this compelling governmental interest of police safety, which has been acknowledged, against what is a de minimis intrusion against Mr. Wilson, where there has already been a diminished expectation of privacy by being in the car in the first place.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: This right to control the site, what's your best citation from this Court giving you that authority, Michigan and Summers, or--</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Well, Michigan and Summers, Justice Kennedy--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: --Is that the closest case, do you think?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Sir?</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Is that the closest case to support the proposition that the officer does have this authority to control the location?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor.</p>
<p>To control the safe completion of, in that case the search of the house, he had to have the ability to make certain that he could safely and successfully complete the search, and the same weight goes here.</p>
<p>The--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, but there is a difference.</p>
<p>I mean, the driver was stopped because there was reason to believe he had violated a traffic law, or requirement, that the driver was speeding while making an illegal turn, or without a license on the car, or whatever.</p>
<p>But there is no such suspicion on the part of the passenger, who was not driving the car, and I don't think Pennsylvania v. Mimms, which says yes, you can require the driver to step out and wait until the ticket is issued or a resolution is made on that question, but I'm just not sure what the authority is for detaining a passenger who is required to step out.</p>
<p>The passenger is not suspected of an illegal driving offense.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Justice O'Connor, we would respectfully suggest that it's the Mimms decision that required the driver to exit not because in this case he was speeding, as was the probable cause, or not because there was a faulty tag, but because the Court concluded that there was potential danger, and so for the reason that they wanted... police safety was the reason Mimms got out of the car, not because there was--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Yes, but nevertheless they had a right to stop the car because it was an alleged traffic violation by the driver, isn't that so, otherwise they couldn't have stopped the car at all, presumably.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --That is correct.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Okay, and that reason does not apply to the passenger, so I'm trying to understand what is your authority for claiming the right not only to require the passenger to exit, but to detain the passenger.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: If Your Honor please, when there was a stop of the Mimms car or the Wilson car by virtue of physics both are seized, or both are detained, so there the driver and the passenger are identical.</p>
<p>They're both seized.</p>
<p>They're both stopped.</p>
<p>If, in fact, the rationale of Mimms is to be conveyed to the passenger, the safety of the officer, it is equally apparent that the passenger would have had much... just as much access to the gun as Mr. Mimms would have had.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: But it's not just physics, it's privacy and dignity, and we all know that the police will take our decisions as far as their language and logic permit, and I'm just concerned that you're going to have routine practices of whole families and four or five occupants of the cars being required to stand outside while the officer lectures the driver.</p>
<p>I mean, that's just going to happen, isn't it?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Well, Justice Kennedy, that would happen now in Mimms, because without any discretion, or any guidelines, the officer now may in that case require someone to exit.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, but that's what we're here to decide--</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: And for the same--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: --And you're proposing a general automatic rule that passengers can always be required to exit at the demand of the officers.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Yes.</p>
<p>Yes, Your Honor, that's the proposal that we have, and the rationale being that the order out in Mimms was not because of the traffic violation but because of the finding that there is... there's a compelling reason for police safety to require the officer to make that--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: But you have a lesser interest on the part of the driver in privacy or not being free from whatever you... whether it's searching... the driver... there's probable cause to believe that the driver has committed an offense, whereas there isn't any probable cause to believe that the passenger has committed offense, an offense, so the calculus, if it's a weighing process, the interests of the passenger would seem stronger than the interest of the driver.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Mr. Chief Justice, I would take the position that the privacy interests of the driver and the passenger are identical.</p>
<p>However, if the Court should so find that there is a minor privacy interest difference, notwithstanding, there still is... as far as the passenger is concerned he already has a diminished expectation of privacy, and with that diminished expectation of privacy, we're talking about a very diminished intrusion.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, not necessarily.</p>
<p>Suppose it's a driving snowstorm, or a blinding rainstorm, the passenger is a mother with a very young baby, and the officer automatically can order her out of the car, to put the baby down outside where he can see the baby and raise her hands up, and real damage can occur, and there is no reason that the car was stopped because of what that passenger was doing under the circumstances here.</p>
<p>Now, maybe an officer can see a passenger in the car holding a gun.</p>
<p>Well, that's a different situation, isn't it.</p>
<p>But is there any... and suppose the Court thinks there is a real difference between the driver and the passenger in that the driver can be stopped for what the officer perceives is a traffic violation.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Justice O'Connor, I see the point you're trying to raise, and obviously the question of a baby and a yound mother out in the rain is obviously not--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: That's just one example and you want an automatic rule.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Yes, Your Honor, we do want the automatic rule, and I might add, the same--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: And it will work automatically, too.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Yes.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Because bureaucracies being what they are, in order to protect themselves from claims of discrimination, making some people get out because of their race or because of whatever else, to be sure that no such claims will be available they will make everybody get out.</p>
<p>That will be an invariable rule.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: With respect, Justice Scalia--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Even the lady with the baby.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --With respect, Justice Scalia, I appreciate the question.</p>
<p>That same scenario, of course, could happen under Mimms, and Mimms has now been with us for 19, almost--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: The question is, do you have concerns about it?</p>
<p>Do you, as the chief law enforcement officer of your State, have concerns about a rule where throughout your State, maybe throughout the country, all the occupants of every vehicle that is stopped for a traffic offense can be ordered to get out of the car and routinely are required to parade the... required to remain in public view while the citation process is going on?</p>
<p>Do you have any concerns about that?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Well, I obviously have.</p>
<p>Yes, Justice Kennedy, I obviously have a concern.</p>
<p>The point we're making, though, is that removing a driver doesn't eliminate the danger that we talked about in Mimms.</p>
<p>The passenger has equal access to the same revolver that Mr. Mimms would have had, so removing the driver does not eliminate the problem.</p>
<p>Yes, I admit, Justice O'Connor--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Or suppose the passenger has certain dementia.</p>
<p>It's an old parent who, left to his own, will just wander away and not even understand what was being said to him, but automatically you're going to get this passenger out and require him to stay, and if he doesn't understand, shoot him.</p>
<p>[Laughter]</p>
<p>You know.</p>
<p>I just... this can be carried to extremes, and you seem to don't even recognize that there might be a difference.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --I do understand, Justice O'Connor, there is a difference.</p>
<p>I'm simply suggesting this, that removing the driver does not remove the danger.</p>
<p>In fact--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Everybody agrees with that.</p>
<p>I just... everybody agrees with that, but the question is the risk of abuse.</p>
<p>Now, I notice in the opinion, but I... maybe it's in the briefs and I didn't see it... it says several jurisdictions already have extended Mimms to passengers.</p>
<p>Is there any indication that there are any of these problems, or there are not these problems, in the other jurisdictions that have already adopted the rule that you want?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Your Honor, I am not able to say that I have researched the cases in the other jurisdictions, but indeed I will tell you that there are a majority... there are 20 States that have ruled the way Maryland wishes to rule, and there are five... including the District of Columbia, so there are 21 areas, including there are five, four or five Federal circuit courts, mostly in the--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: So we have to look at those.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --There is a--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: We have to look those up.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --A substantial majority have ruled this way.</p>
<p>There's five that have ruled against us, to be honest with you.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: I have another question which I wanted to ask, which is that I didn't know until this argument that you are suggesting that the police should have the right to detain the passenger.</p>
<p>I thought that you were... after... suppose the passenger gets out of the car, and the policeman asks him to, and then he says, I'm fed up with this.</p>
<p>I want to take a bus.</p>
<p>And the bus goes along, and he takes it.</p>
<p>Are you arguing that the policeman should be free to tell him no, you can't take the bus?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Where is... I didn't find that in your brief, and I don't know what the rationale for that would be.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: It is in our brief and in our argument in terms of the ability to control, Your Honor, the location.</p>
<p>The individual may say, I wish to take a bus and go elsewhere.</p>
<p>The officer need not accept that as real.</p>
<p>The officer is still concerned about his genuine safety, and the only way he can really make certain it is a safe stop is to control the location--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General Curran, you did say that it would only be to show his hands, that he could not be frisked.</p>
<p>The officer could not question the passenger without the passenger's consent.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --Yes, Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: So once he shows his hands, then he can walk away and hail a cab?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: No, Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, what can he do, then?</p>
<p>Can you--</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Our rule would ask the passenger to get out, to stand in a certain location described by the officer, to show his hands, and to remain there for the 10 minutes while the information is obtained about the license and the registration.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: --So he just has to stand there.</p>
<p>He can't be questioned and he can't be frisked, but he's not free to leave until the officer says, okay, I'm done, you can go.</p>
<p>That's the rule you want.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor, or the officer may, with discretion, as we've talked about in Class, permit the passenger to remain in the car.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General Curran, can I ask this one question?</p>
<p>You suggested as a justification for that that the passenger is already seized, just like the driver.</p>
<p>They're both forced to stop.</p>
<p>But the driver has been lawfully taken into custody during the investigation.</p>
<p>There's no lawful authority to take the passenger into custody.</p>
<p>He's seized in the sense the car had to stop, but he's not legally seized, is he?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: No, sir.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General, as you have put the case, you really just want the officer to have the opportunity to exercise judgment in deciding whether the passenger ought to get out or not.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Why doesn't Terry give you the authority for that?</p>
<p>I assume, for example, that in this case under the principles of Terry, with all the movement of the car, the ducking around and so on, that the officer probably would have had the authority at least to go as far as Terry would have let him go in asking or satisfying himself that the passenger wasn't a danger.</p>
<p>Why isn't Terry enough?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Your Honor, we would have thought that there was justification for a reasonable suspicion in the Wilson case.</p>
<p>However, we don't believe it's appropriate to have the officer try to wait for some level of risk to arise if he or she waits--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: But I thought your argument was that the officer was going to exercise judgment, and if your argument now is that he doesn't have to wait for some indication of risk, then I think you're really saying the officer as a routine matter is going to order every passenger out of the car, so I think that's a difference in your position.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --I'm not so sure that's the case, Justice Souter, because as I say, the typical training in our manual, which indicates... and I believe it's typical across the Nation... is to require both the driver and the passenger to remain in the car.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, my understanding was that you want a holding that lets the officer at the officer's discretion require all parties to exit or no parties to exit, but if he wants all parties to exit, they must, and you want the right, then, to detain the passengers who have exited.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: That is correct, Your Honor, for this minimal--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, all right, but the Fourth Amendment, after all, is based on reasonableness.</p>
<p>That's been the requirement all along, and should there be no reasonableness requirement on the matter of detaining passengers?</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: --We believe, Justice O'Connor, that the reasonableness factor is best weighed by the balancing test that the Court has used again and again, the high governmental interest against this minimal intrusion against what is already a de minimis privacy expectation of the passenger.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: And in circumstances where it isn't a de minimis intrusion.</p>
<!-- j_joseph_curran_jr--><p><b>Mr. Curran</b>: Yes, Your Honor.</p>
<p>May I be permitted to reserve the balance of my time?</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Very well, General Curran.</p>
<p>We'll hear now from the Attorney General, Ms. Reno.</p>
<p>Argument of Janet Reno</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>Traffic stops present special dangers to police officers.</p>
<p>They're faced with an unknown situation, an unknown area, they're faced with little knowledge, if any knowledge of the occupants of the car, and they are vulnerable to attack not just from the driver but from the passenger.</p>
<p>In Mimms, this Court found that these safety concerns justify a per se rule that an officer in a valid traffic stop can order the driver to exit the vehicle.</p>
<p>We submit that Mimms should be applied to passengers for three reasons on the issue of order to exit.</p>
<p>First, the driver... the officer has to focus on the driver in implementing the traffic stop and in securing the information with respect to a license or to the vehicle.</p>
<p>He cannot monitor the passenger's conduct at the same time.</p>
<p>The focus in Mimms was on the inordinate risk, and the Court made specific reference to the inordinate risk as an officer approaches a person seated in the car, and the Court specifically said that the officer had no reason in Mimms to believe that the officer was suspect as to foul play, so it was the focus on a person seated in the car that created the danger.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General Reno, you want no reasonableness limitation on this.</p>
<p>I suppose that means that a police officer could stop a bus and say, everybody off the bus.</p>
<p>Or... you know, does vehicle size come into it?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: Yes, Your Honor.</p>
<p>That might be a more difficult question for the Court, but--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, not for you.</p>
<p>You want no reasonableness limitation.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: --Again, the bus situation can be an unknown situation for that officer, and he needs the opportunity, under our position, to be able to size up the situation, to determine and observe the people involved, and he may determine that he wishes them to stay in or to exit.</p>
<p>Police practices indicate that both are appropriate, depending on the stage of the traffic stop and depending on the circumstances of the traffic stop.</p>
<p>We are submitting that under the... this Court's rule in Mimms, it is the persons seated in the vehicle that create the danger and the approach to that danger, and a police officer should not have to calibrate what is in... critical and what is not critical.</p>
<p>He should be able to size up the situation, determine who's there, get full view of them when appropriate, get them out of the car to neutralize the situation, to get them away from the gun, and we submit that the intrusion is de minimis.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, why isn't Terry enough?</p>
<p>I mean, your argument is that he ought to be able to size up the situation.</p>
<p>Terry gives him a chance to size up the situation.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: Terry might not have given, if the passenger had been in the same situation as Mimms with a gun in his... under his sports coat, he might not have been able to see that seated in the car.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, then I think what you're really arguing, and I think this was what the Attorney General from Maryland was really arguing, is you really don't so much want him to size up the situation.</p>
<p>You simply want to have the right to get him out of the car, period.</p>
<p>It's not going to be a question of judgment.</p>
<p>It's going to be a question of routine practice, I assume.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: No, Your Honor.</p>
<p>As this Court has pointed out and as police practice points out, in many instances they will want them to stay in the car.</p>
<p>If one officer is on the scene, he may want them all in the car so he can better control them, or if the lighting is such or the circumstances are such or the window is such that he wants the passenger whom he has seen looking at him in a curious way, he may want him out of the car to determine whether he has a weapon on his person.</p>
<p>It's going to depend on so many different circumstances--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: But may I interrupt with just this one thought that crosses my mind?</p>
<p>Do you think the officer is greater or less danger, if there's a passenger sitting in the car with the gun in his jacket as you describe, if he tells him to get out of the car?</p>
<p>Is he less or... which situation would he be more apt to use the gun in?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: --One cannot say when... how he would be more apt to use the gun.</p>
<p>What he can say is that there would be situations where that gun may not be observed as the passenger--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Right.</p>
<p>It would certainly help to arrest people who carry guns, that's right.</p>
<p>I see you would catch more gun-carriers, but I don't think that's the justification you're advancing.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: --That is... the justification that I'm advancing is that that officer should have the ability to immediately size up the situation, determine if there is any reasonable suspicion to believe that a person is armed, and then advance to Terry frisk if that is appropriate, but that he should have the opportunity to control the situation if he is the single officer on the scene before the backup comes, to keep them in the car so that he doesn't have a person moving here, here, and here, or to get them out of the car if there are circumstances that dictate that they should be out of the car.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General Reno, you are arguing for a bright line test, and I'm wondering how that squares with the very recent decision of this Court in Robinette, which said that reasonableness is always case-by-case totality of the circumstances, and yet here you're saying that it's reasonable in any and all circumstances for the police officer to say, everybody out, or everybody in.</p>
<p>That doesn't go case-by-case.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: In Robinette, Your Honor, the Court specifically cited it would favor the Mimms decision, and concluded... pointed out that Mimms, considering all the totality of the circumstances, that it was reasonable in light of the safety concern for the officer that was more than balanced against the de minimis intrusion into the passenger's personal security, that in those totality of circumstances it was reasonable, under Mimms, to justify it.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: General Reno, how much of a problem is it in the States that haven't adopted this rule?</p>
<p>How often does a citizen who has been told to stay in the car or told to get out, in those States that require a reasonable suspicion, at least, on the part of the officer, how often have those citizens sued and recovered?</p>
<p>I mean, is it a real problem?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: I don't have any information that I could provide to you, Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Let me ask you a question on something that frankly I think I should have done some looking into before I came on the bench, but I didn't.</p>
<p>Has this Court ever ruled on the authority of an officer to control members of the public generally when making, let's say, an arrest in a public place?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: I'm not familiar with the opinion, Your Honor.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: I'm not, either.</p>
<p>There may not be one.</p>
<p>There are holdings, are there not, on control of a crime scene, to require people to stay away while they assemble evidence and--</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: At a crime scene, if someone entered in beyond the crime rope there would definitely be authority to control, and it would depend on the State law.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: --Do you think a policeman is more at risk from a passenger in the car than from the bystanders who congregate when the stop is made?</p>
<p>Why is he more at risk from the passenger, bearing in mind that the car has been stopped only for a traffic vio... I mean, if the car has been stopped because of suspicion of drugs, that would be something else, but let's assume it's just a speeding violation.</p>
<p>Is an officer usually more at risk from the passenger than from bystanders?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: The issue with respect to a traffic stop, Your Honor, is the unknown, the danger in approaching the vehicle.</p>
<p>The danger in approaching people seated in the vehicle is what the Court in Mimms specifically referred to.</p>
<p>In the instance where you have people who are bystanders you have an opportunity to observe them to make an appropriate decision, but in the situation with the automobile, he's approaching an automobile.</p>
<p>He doesn't know what's in it.</p>
<p>He can't see into it from his patrol car.</p>
<p>He doesn't know who's there.</p>
<p>He can't see their actions fully.</p>
<p>That is the issue that makes this situation different than the situation of bystanders who may be in plain view.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: The concealment thing.</p>
<p>Do you agree, General... Ms. Reno with the Attorney General from Maryland that the passengers who have been told to exit can be required to remain and not take the taxi or leave?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: That's not the issue before the Court, but we would submit that it would be reasonable under the Fourth Amendment.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: So that this is a prolonged seizure.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: It is not a prolonged seizure because this Court in Berkemer has referred to traffic stops.</p>
<p>It applies to routine traffic stops.</p>
<p>It applies to a brief, temporary stop, and under those circumstances the officer should be able to see the person as they exit the car.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, we know that when they check licenses on their radio and hold the passenger it can sometimes take 15 or 20 minutes for a routine traffic stop, can it not?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: It can, and the Court has recognized that is usually of that duration, but that is a limited duration in which the police officer can have the opportunity to size up the situation and see whether the person presents a threat.</p>
<p>For example, if the person got out of the automobile, and this is not the issue before the Court, and suddenly ran into the bushes and... the officer, we submit, ought to be able to control that situation so he can first determine the risk to him before the person departs.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Let's assume for the sake of argument that we do not adopt the rule that goes as far as you have just suggested it should, that... let's assume our... under our rule, once the passenger is out of the car, if the passenger wants to go, he can.</p>
<p>If that is the limit of the detention allowed, is the situation of the passenger in any significantly different... is the situation of the passenger significantly different from that of a bystander in the course of a public arrest somewhere?</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: May I--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Yes.</p>
<!-- janet_reno--><p><b>Mr. Reno</b>: --complete the answer, Your Honor?</p>
<p>In that situation, if the person were free to go, again the officer would have the opportunity to observe him, to see whether there was a basis for a reasonable suspicion that would justify a frisk, or justify action to protect the officer's safety in that situation.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Thank you, Ms. Reno.</p>
<p>Mr. Warnken, we'll hear from you.</p>
<p>Argument of Byron L. Warnken</p>
<!-- byron_l_warnken--><p><b>Mr. Warnken</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The State of Maryland asks this Court today to draw a bright line that would permit a compelled detention essentially ultimately equalling perhaps the level of an arrest as to every single passenger in every single v